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ADDRESS 



FREE CONSTITUTIONALISTS 



THE PEOPLE OF THE UNITED STATES. 



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BOSTON: 

PUBLISHED BY THAYER & ELDRIDGE, 

116 Washington Street. 
1860. 






A 



A FEW friends of freedom, who believe the Constitution of the 
United States to be a sufficient warrant for giving liberty to all the 
people of the United States, make the following appeal against any 
support being given to the Republican Party at the ensuing election. 

Boston, September, 1860. , 



NOTE TO SECOND EDITION. 

Althoush this address was published previous to the late presidential 
election, and was designed to have an effect upon it, it nevertheless contains 
constitutional opinions, which are deemed of permanent importance, and 
worthy of preservation. The opinions it expresses in regard to the Repub- 
lican party will also be pertinent so long as that party shall occupy the 
grounds it has hitherto done. 

Boston, November, 1860. 

Hjr transfer 

a *o6 



i 



ADDRESS. 



I. 

The real question, that is now convulsing the nation, is not — 
as the Republican party would have us believe — whether slaves 
shall be carried from the States into the Territories ? but whether 
anywhere, within the limits of the Union, one man shall be the 
property of another ? 

Whether a man, who is confessedly to be held as property, 
shall be so held in one place, rather than in another ? in a State, 
rather than in a Territory ? is a frivolous and impertinent question, 
in which the man himself can have no interest, and which is un- 
worthy of a moment's consideration at this time, if not at all 
times. If he is to be a slave at all, the locality in which he is 
to be held, is a matter of no importance to him, and of little or 
no importance to the nation at large, or any of its people. 

If there are to be slaves in the country, a humane man, instead 
of feeling himself degraded by their presence, would desire to 
have them in his neighborhood, that he might give them his sym- 
pathy, and if possible ameliorate their condition. And the man, 
who, like the Republican party, consents to the existence of 
slavery, so long as the slaves are but kept out of his sight, is at 
heart a tyrant and a brute. And if, at the same time, like the 
more conspicuous members of that party, he makes loud profes- 
sions of devotion to liberty and humanity, he thereby just as 
loudly proclaims himself a hypocrite. And those Republican 
politicians, who, instead of insisting upon the liberation of the 
slaves, maintain, under the name of State Rights, the inviola- 



4 

bilitj' of the slaveholder's right of property in his slaves, in the 
States, and jet claim to be friends of liberty, because they cry, 
" Keep the slaves where they are ; " " No removal of them into 
the Territories ; " ^^ Bring them not into our neighborhood,''^ — are 
either smitten with stupidity, as with a disease, or, what is more 
probable, are nothing else than selfish, cowardly, hypocritical, 
and unprincipled men, who, for the sake of gaining or retaining 
power, are simply making a useless noise about nothing, with the 
purpose of diverting men's minds from the true issue, and of 
thus postponing the inevitable contest, which every honest and 
brave man ought to be ready and eager to meet at once. 

II. 

We repeat, that the true issue before the country — the one 
which sooner or later must be met — is nothing less than this : 
Shall any portion of the people of the United States be held as 
property at all ? 

So far as the practical solution of this question depends upon 
existing political institutions, it depends mainly upon the consti- 
tution of the United States. 

If the constitution of the United States — " the supreme law 
of the land" — declares A to be a citizen of the United States 
(we use the term citizen in its technical sense) then, constitution- 
ally speaking, he is a citizen of the United States everywhere 
throughout the United States, — " any thing in the constitution 
or laws of any State to the contrary notwithstanding ; " and no 
State law or constitution can depose him from that status, or 
deprive him of the enjoyment of the least of those rights, 
whicii the national constitution guarantees to the citizens of the 
United States. 

If, on the other hand, tliat same " supreme law " declares him 
to be property, then, constitutionally speaking, he is property 
everywhere under that law ; and his owner may, by virtue of 
that law, carry him, as property, into any and every State in 
the Union, and there hold him as a slave forever, — " any thing in 
the constitutions or laws of such States to the contrary notwith- 
standing." 



There can, therefore, be no such di8tinctIon made between the 
States, as that of free and slave States. All are alike free, or 
all are alike slave, States. They must all necessarily be either 
the one or the other ; since the constitution of the United States, 
being " the supreme law " over all alike, must necessarily de- 
termine, in all alike, the status of each individual therein, rela- 
tive to that " supreme law.^' In other \Yord3, the constitution 
of the United States, and not any constitutions or laws of the 
States, must determine, in the case of each and every individual, 
■whether he be a citizen of the United States, and entitled to the 
benefits and protection of the national government, or not. If 
it determines that any particular person is a citizen of the United 
States, entitled to the benefits and protection of the national 
government, then certainly he cannot be deprived of such citizen- 
ship, or of the protection and benefits which that citizenship im- 
plies, by any subordinate or State government; for, in that case, 
the constitution of the United States would not be " the supreme 
law of the land." If, on the contrary, the constitution of the 
United States determines that any particular individual (native 
or naturalized) is not a citizen of the United States, nor entitled 
to the benefits and protection of the national government, it can 
do 80 only because it has itself declared him to he property ; 
since that is the only cause that can prevent his being a citizen 
of the United States, and entitled, as such citizen, to the benefits 
and protection of the government of the United States. The 
declaration of no subordinate law, that he is property, can break 
the force of that " supreme law," which declares everybody 
(native and naturalized) a citizen, whom it does not itself declare 
to be a slave. 

The government of the United States cannot act directly upon 
the State governments, as governments, requiring them to do this, 
and forbidding them to do that. It must, therefore, act directly 
upon individuals ; else it cannot act at all. It is practically a gov- 
ernment only so far as i^ does operate upon individuals. It must 
necessarily know, by virtue of the United States constitution, the 
individuals upon whom it is to operate ; otherwise it would be 
in the situation of a government not knowing its own citizens, 
and consequently not knowing to whom its own duties were due. 



The rights, which the general government secures to the people, 
are as much i^ersonal rights, and come home to each separate 
individual as directly and fully as do the rights secured to them 
by the State governments. And the rights secured to the 
people by the national government, as much imply personal 
liberty, on the part of the people, as do the rights secured to them 
by the State governments ; for, without personal liberty, the 
former rights can no more be enjoyed than the latter. Hence 
the indispensable necessity that the general government should 
know, for itself, independently of the State governmeiits, who 
are, and who are not (if any are not) citizens of the United 
States ; for otherwise, we repeat, it cannot know to whom its own 
duties are due. 

To say that it rests with the State governments to decide upon 
whom the United States government shall act, or upon whom 
it shall confer its protection or benefits, is equivalent to saying 
that " the supreme law " is dependent upon the arbitrary will of 
subordinate laws, for permission to operate at all as a law. It is 
consequently equivalent to saying that the subordinate law may 
nullify the supreme law, and exclude it from a State altogether, 
by simply declaring that no persons whatever, within the State, 
shall be citizens of the United States ; and consequently that 
there shall be no persons, within the State, upon whom the 
supreme law can operate, or upon whom it shall confer its bene- 
fits. 

We repeat the proposition, that, if the State constitutions or 
laws can determine who may, and who may not, be citizens 
of the United States, and enjoy the benefits of the United States 
government, each State may nullify the constitution, government, 
and laws of the United States, within such State, by declaring 
that there shall be, within the State, no citizens of the United 
States, to enjoy those benefits, or upon whom the laws of the 
United States shall operate. 

It is, therefore, indispensable to the existence and operation 
of the government of the United States, that the constitution of 
the United States shall itself determine upon whom the United 
States government shall operate, and who are its citizens, " any 



thing in the constitutions or laws of the States to the contrary 
notwithstanding ; " and that the State laws and constitutions 
shall be allowed to have nothing to do with the matter. 

To say that a State can make a man a slave, is only another 
mode of saying that a State can deprive the United States of a 
citizen, and abolish the government of the United States, so far 
as that citizen is concerned. And to say that a State can 
deprive the United States of one citizen, is equivalent to saying 
that a State can deprive the government of the United States of 
all its citizens, within the State. And to say that a State can 
deprive the government of the United States of all its citizens, 
within the State, is equivalent to saying that the State can 
entirely abolish the United States government, within such State. 
This is the necessary conclusion of the doctrine, that the States 
can make a slave of any individual, who would otherwise be a 
citizen of the United States. 

If all the people of the States were made slaves, plainly the 
United States government would have no citizens, upon whom it 
could operate ; and it would, therefore, be virtually abolished. 
And, in just so far as the people of the United States are made 
slaves, in just so far is the United States government abolished. 
This whole theory, therefore, that the States have a right to 
make slaves of the people of the United States, is nothiag less 
than a theory that the States have the right to abolish the govern- 
ment of the United States, by withdrawing individuals from the 
operation of its laws. 

To say, as is constantly done, that the United States consti- 
tution " recognxze^^'' as slaves, those whom the States may de- 
clare to be slaves, is equivalent to charging the constitution 
with the absurdity of recognizing the right of the States to make 
slaves of the citizens of the United States. And to say that the 
constitution of the United States recognizee the right of the 
States to make slaves of the citizens of the United States, is 
equivalent to charging it with the absurdity of actually recogniz- 
ing the right of each separate State to abolish the government 
of the United States, within such State. 

It therefore results that the constitution of the United States. 



8 

" the supreme law of the land," must necessarily fix the status 
of every individual relatively to that law ; and that, in fixing the 
i<tatus of each and every individual, relatively to that law — that 
is, in determining whether an individual shall be a citizen of the 
United States or not, — it necessarily fixes his status as a freeman, 
or a slave. 

And it necessarily does this independently of, and in defiance 
of, any subordinate or State law ; for otherwise it could not be 
'• supreme." 

To say that the national constitution is " the supreme law of 
the land," and yet that it depends upon each of thirty-three 
State governments to say upon whom that supreme law shall 
operate, or whom it shall protect, is as absurd as it would be to 
say that one man is an absolute monarch over thirty-three States, 
and yet that he is wholly dependent upon the consent of thirty- 
three subordinate princes, for permission to rule over his own 
subjects. 

If the constitution, laws, and government of the United States 
are to be limited, in their operation within each State, to such 
individuals as the States respectively may designate, then each 
State may, so far as its own territory is concerned, determine who 
may, and who may not, send and receive letters by the United 
States mall ; who may, and who may not, go into a United 
States custom-house for purposes of commerce ; who may, and 
who may not, go into a United States court-house ; and so on. 
If this were the true relation between our general and State 
<'0vernments, then the United States constitution, instead of 
declaring that " this constitution, and the laws of the United 
States, which shall be made in pursuance thereof, and all treaties 
made, or which shall be made, under the authority of the United 
States, shall be the supreme law of the land, and the judges in 
every State shall be bound thereby, any thing in the constitu- 
tion or laws of any State to tlie contrary notwithstanding," ought 
to have declated that this constitution, and the laws and treaties 
made by the United States In pursuance thereof, shall have effect, 
within each State, only so far as such State shall consent, or only 
upon 5=uch Individuals as such State shall designate. 



III. 

Another proof that the general government must determine 
for itself, independently of the State governments, who are, and 
who are not, citizens of the United States, is found in that provi- 
sion of the constitution, which declares that " the United States 
shall guarantee to every State of this Union a republican form of 
government." 

Although the constitution presumes that the State governments 
will be representative governments, yet this provision for " a re- 
publican form of government" certainly requires that the United 
States shall guarantee to the States something more than a mere 
representative government; for a government maybe a repre- 
sentative government, and yet the constituent body — or the body 
enjoying the right of suffrage — be so small, and the principles of 
the government so exclusive and arbitrary, as to make the go- 
vernment a perfect tyranny, as to the great body of the people. 
A guaranty, therefore, of a representative government simply, 
would have been of no practical value to the people. 

It is plain, too, from another part of the constitution, that the 
constitution does not mean to imply that a representative form of 
government is necessarily a republican form of government ; be- 
cause if it did, it would have made some specific provision as to 
the extent of the suffrage to be enjoyel by the constituent body. 
Whereas it leaves that matter to be regulated at the discretion of 
the States respectively.* 

It is certain, therefore, that the " republican form of govern- 
ment," which the United States are bound to guarantee to the 
States, is something essentially different from, and more than, a 
representative government, representing such portions only of the 
whole people as may chance to get the power of a State into their 
hands, wielding it arbitrarily for their own purposes. 

What, then, is implied in this " republican form of govern- 

* " The House of Representatives shall be composed of members, chosen every 
second year by the people of the several States; and the electors in each State 
shall have the requisite qualifications' for electors of the most numerous branch of 
the State legislature."—^;-;. /., see. 2. 



10 

ment ? " This certainly^ if no more, is implied — for this must 
necessarily be implied in the very terms, " a republican form of 
government," — viz., that at least all the members of the republic 
shall enjoy the protection of the laws. 

Whatever other disagreements there may be in men's minds, 
as to the essential requisites of " a republican form of govern- 
ment," certainly no man in his senses can deny so self-eviient a 
proposition as this, — that such a government necessarily implies 
that all tbe acknowledged meinbers of the rqmblic must be under 
the protection of the laws. 

This being admitted, it follows that the United States must 
guarantee to each State a government, that shall give the protec- 
tion of the laws to all the acknowledged members or citizens of the 
State. 

But who are the acknowledged memhQvs, or citizens of a State ? 
We answer, that, whomsoever else they may, or may not, include, 
they must certainly include all the citizens of the United States, 
within the State. This must necessarily be so ; because it would 
be absurd to suppose that those people, in the various States, who 
united to form the national government, and thereby made them- 
selves citizens of the United States, would also unite to guarantee 
a republican form of government for each of the separate States, 
unless they themselves were personally to have the benefit of this 
guaranty. It certainly cannot be supposed that they would be 
so foolish and suicidal as to unite to guarantee to others a govern- 
ment within the States, the benefits of which could be denied to 
themselves, or the power of which could be turned against them- 
selves for purposes of oppression. 

This guaranty, then, on the part of tho United States, of a 
" republican form of government " for each State, is a guaranty 
of a government, under which at least all the citizens of the 
United States, u'ithin the State, shall have the protection of (he laws. 

From this proposition it follows inevitably that the United 
States government must determine, independently of the State 
government, who are the citizens of the United States, tvithin a 
State; for, otherwise, it could not know when it had fulfilled this 
guaranty to them of the protection of a republican form of go 



11 

vernment. The guaranty itself might be wholly or partially de- 
feated, at the pleasure of the State government, if it were left to 
the State government itself to determine who were, and who were 
not, among those citizens of the United States, within the State, 
for whose benefit this guaranty had been made. And the State 
government might very likely have great motive to defeat the 
guaranty, either in whole or in part. 

It must be borne in mind that this guaranty of a republican 
form of government to the citizens of the United States, within a 
State, is a guaranty against the oppressions of any anti-republi- 
can form of government, that may succeed in obtaining power in a 
State. Yet clearly the United States could not protect its own 
citizens against such anti-republican government within the 
States, unless it could determine, independently of the State go- 
vernments, who its own citizens, within the States, were. 

We insist that this argument is entirely conclusive to prove 
that the United States Government must determine, for itself, 
who are its own citizens within the respective States ; and that the 
constitutions and laws of the States themselves can have nothing 
whatever to do with the matter. 

IV. 

Still further proof that the constitution of the United States, 
and not the constitution or laws of the States, controls the citizen- 
ship of every person born in the country, is found in the fact that 
a simple act of congress is acknowledged by all to be sufficient, 
in defiance of all State laws and constitutions, to confer the privi- 
lege of United States citizenship upon persons of foreign birth. 
It would certainly be very absurd to give to congress such a 
power in regard to foreigners, if neither the United States con- 
stitution, nor the United States government had any similar 
power in regard to the natives of the country ; for, in that case, 
the constitution would do more for foreigners than for natives. 

V. 

We therefore hold it demonstrable, at least, if not self-evi- 
dent, that the constitution of the United States, " the supreme 



12 

law of the land," must, »imply hy virtue of its supremacy, fix the 
status of every individual in the United States, independently of 
the State governments ; that it must operate directly upon each 
and every individual, native or naturalized, declaring him enti- 
tled, as a citizen of the United States, to the protection and bene- 
fits of the national government, or declaring him to be property, 
subject only to the will of his owner, and therefore entitled to 
no personal protection at all, either from the general or State 
governments. 

VI. 

If it rests with the State governments to say whether the na- 
tives of the country shall be citizens of the United States, and 
liave the protection of the national government, or be property, 
subject only to the will of their owners, then certainly it rests 
equally with the State governments to say whether naturalized 
persons shall be citizens or slaves ; for naturalization by the 
United States government can at most but put the persons na- 
turalized on a level with the natives. And that is all that the 
principle of naturalization implies. 

This question therefore, as to the power of the States to con- 
vert men into property, is not one that concerns the natives of 
the country alone. It concerns all immigrants as well ; since the 
general government can certainly have no more power to protect 
immigrants against being reduced to property ,thanit has to pro- 
tect those born on the soil. 

VII. 

There are, then, three decisive proofs that the United States 
government must determine for itself, independently of the State 
governments, who are, and who are not (if any are not) citizens 
of the United States. 

The first of these proofs is, that otherwise the United States 
government could not know its own citizens, or consequently 
know to whom its own proper and ordinary duties were due. 



13 

The second proof is, that otherwise the United States govern- 
ment could not know when it had fulfilled its guaranty of " a re- 
publican form of government " to the citizens of the United States, 
within the States respectively. 

The third proof is, that otherwise the United States con- 
stitution and laws could either do more for foreigners (by natu- 
ralization) than they can do for those born on the soil ; or else 
naturahzation itself, by the United States government, would 
be an utterly useless process for protecting the persons naturalized 
against being reduced to property by the State government. 

VIII. 

Assuming it now to be settled, that the constitution of the 
United States fixes the status of every person, as a citizen or a 
slave ; and that it does so, " any thing in the constitution or laws 
of any State to the contrary notwithstanding ;" let us ascertain 
what its decision on this point is. To do so, we have only to 
ascertain by and for whom the constitution of the United States 
was established. This the instrument itself has explicitly in- 
formed us. It declares itself to have been established by " the 
people of the United States," for the benefit of " themselves 
and their posterity." From this declaration of the constitution 
itself there can be no appeal. And the instrument is to be in- 
terpreted throughout consistently with this declaration. Thus 
interpreted, it implies that all the then " people of the United 
States," with their " posterity," were to be citizens of the 
United States, and, as such, to have the benefit and protection 
of the general government ; and consequently that none of 
them could be lawfully reduced to the condition of property. 
It also authorizes congress to naturalize all persons of foreign 
birth, coming into the country, without discriminating between 
those that may come in voluntarily, and those that may be 
brought in against their will. It also authorizes Congress " to 
punish offences against the law of nations ; " and thus authorizes 
the punishment of all attempts to enslave the people of other 
nations, whether they come here voluntarily, or are brought here 



u 

by force. It also, without making any discrimination as to per- 
sons, authorizes the writ of habeas corpus^ which denies the 
right of property in man. It also requires the United States to 
" guarantee to every State in the Union a republican form of 
government ; " under which at least all the citizens of the United 
States, within the State, shall have the protection of the laws. 
In these various ways, the constitution of the United States, 
" the supreme law of the land," has made the principle of 
property in man impossible anywhere within the United States ; 
and has empowered the general government to maintain that 
principle, in opposition to any subordinate or State government. 

We are aware that the supreme court of the United States, 
in the Dred Scott case, have asserted that the phrase, " the 
people of the United States," did not mean all the people, but 
only all the white people, of the United States. And they at- 
tempt to fortify this opinion by saying that the Declaration of 
Independence itself did not mean to assert that " all men were 
created equal," but only that all white men were created equal. 
To this view of the case we will, at this time, offer no other an- 
swer than this : that, if this famous clause of the Declaration of 
Independence is to be interpreted according to this opinion of 
the supreme court, the whole instrument must also be inter- 
preted in accordance with it ; and the necessary consequence 
would then be, that the Declaration of Independence absolved 
only the ivhite people of the country from their allegiance to the 
English crown, leaving the black people still subject to that alle- 
giance, and entitled to corresponding protection. Thus Queen 
Victoria would have now, in our midst, four millions of subjects, 
whose rights she ought at once to take care of, as she would un- 
doubtedly be very willing to do. 

We are also aware, that, although " the idea that there could 
be property in man " was studiously excluded from the constitu- 
tion itself, it is nevertheless historically known that an under- 
standing existed, outside of the constitution, among some of the 
framers, and other politicians of that day, that, if the honest cha- 
racter of the instrument itself should be successful in securing its 
adoption by the people, these framers and others would then use 



15 

their inflaence to give to the instrument an interpretation favora- 
ble to the maintenance of slavery. And we are aware that it is 
now claimed that this outside understanding ought to be substi- 
tuted, as it hitherto has been, for the instrument itself, and 
acknowledged as the real constitution, so far as slavery is con- 
cerned. 

Our answer on this point is, — that this outside understanding 
could have existed among but a small portion of the whole 
people ; that they dared not incorporate it in the constitution 
itself; that, instead of being any part of the constitution itself, 
it was but a traitorous conspiracy against the very constitution, 
which they, with others, induced the people of the United States 
to adopt ; that it could have had no legal effect or validity, even 
among those who were actually parties to it ; and that we, of 
this day, would not only be slaves, but idiots, if we were to allow 
the criminal purposes of these men to be substituted for the 
constitution ; and thus suffer ourselves, in effect, to be governed 
by a set of dead traitors and tyrants, who no longer have any 
rights in this world ; who, when living, dared put only honest 
purposes into the constitution ; and who, if now living, would de- 
serve to be punished for their treason and their crimes, rather 
than reverenced as patriots and statesmen, and taken as authori- 
ty as to the true meaning of the constitution. 

The fraudulent interpretation given to the constitution at large, 
in respect to slavery, has been accomplished mainly by means of 
the fraudulent interpretation given to the one word " free," in 
the clause relative to representation and direct taxation. The 
conspirators against freedom, with their dupes, have, from the 
foundation of the government, claimed that this word was used 
to describe a free person, as distinguished from a slave. Where- 
as it had been used in England for centuries, and in this 
country from its first settlement, to describe a native or natural- 
ized person, as distinguished fro7n an alien. Thus our colonial 
charters guaranteed that persons born in the colonies should " be 
free and natural subjects, as if born in the realm of England." 
When the troubles arose between this and the mother country, 
in regard to taxation, our fathers insisted that they were ^\free 



16 

British subjects," and therefore could not be taxed without their 
consent. And, up to the Revolution, the words /reg and/re<?me?2, 
if not the only words used, were the words principally used, to 
designate native or naturalized persons, as distinguished from 
aliens. 

After the Revolution, the word "/ree " continued to be used in 
this political sense, through the country generally. And, at the 
time the constitution of the United States was adopted, it was 
so used in the constitution of Georgia, Art. XI. ; in the general 
naturalization law of Georgia, passed Feb. 7, 1785, Sec. 2 ; 
in a statute of Georgia, passed Feb. 22, 1785, granting lands 
to the Count D'Estaing, and making him " 2kfree citizen " of the 
State; in the constitution of South Carolina, Sec. 13; in a 
statute of South Carolina, passed March 27, 1787, naturalizing 
Hugh Alexander Nixon ; in the constitution of North Carolina, 
Sec. 40 ; in the constitution of Pennsylvania, Sec. 42 ; in nu- 
merous acts of the legislature of Massachusetts, from the year 
1784 to 1789, naturalizing the individuals named in them; in 
the charters of Rhode Island and Connecticut, then continued 
in force as constitutions ; in the Articles of Confederation, Art. 
IV., Sec. 1 ; and in the Ordinance of 1787. The statutes and 
constitutions of several of the States used the words freeman 
2im\ freemen in a nearly similar, if not in precisely the same, 
sense. 

Usage, therefore, — even the usage of the then strongest 
slaveholding States themselves — and all legal ru'es of interpre- 
tation applicable to the case — and especially that controlling 
rule, which requires a meaning favorable to justice, rather than 
injustice, to be given to the words of all legal instruments what- 
soever — required that the word "/ree," in the constitutional 
provision relative to representation and direct taxation, should be 
understood in this political sense, to distinguish the native and 
naturalized inhabitants of the country from aliens, and not to 
distinguish free persons from slaves. 

But slavery, which can be maintained only by force and fraud, 
has hitherto succeeded in palming off upon the country a false 
interpretation of the word "/r^e." And it is only by giving a 



17 

fraudulent meaning to the word " free," that men have been made 
to believe that the constitution recognized the legality of slavery. 
Without the aid of this fraud, the other clauses, now held to 
refer to slaves, could probably never have had such a meaning 
fastened upon them ; since there is nothing in their language 
that justifies such a meaning. 

If we wish to enjoy any liberty ourselves, or do any thing for 
the liberation of others, it is time for us to emancipate ourselves 
from our intellectual and moral bondage to the frauds and crimes 
of dead slaveholders and their accomplices, and either read and 
execute our constitution as it is, or tear it in pieces. If the 
language of our constitution is not to be considered as conveying 
its true meaning, nor interpreted by the same rules by which all 
our other legal instruments are interpreted ; if it is to be pre- 
sumed, as it ever heretofore has been, that neither honest men, 
nor honest motives could have had any part in the formation or 
adoption of the constitution ; but we are to search, outside of the 
instrument, for the private motives of every robber, kidnapper, 
hypocrite, scoundrel, and tyrant, who lived at the time it was 
adopted, and acce,pt those motives, in place of those written in 
the instrument itself, as the only lawful principles of the govern- 
ment, — ; if such is the true mode of ascertaining the legal import 
of written constitutions, the sooner they are all given to the 
flames, the better it will be for the liberties of mankind, and the 
better we shall vindicate our own claims to the possession of 
common honesty and common sense. If we dare not correct the 
frauds of the past, and interpret our constitution by the same 
rules by which it ought to have been interpreted from the first, — 
if, in other words, we dare not decide for ourselves what the true 
principles of our constitution are, and whether those principles 
have been obeyed or violated by those appointed to administer it 
— we are ourselves wretched cowards and slaves, fit to be used as 
instruments for enslaving each other. 

But, independently of the constitution of the United States, 
we know that slavery has never had any constitutional existence 
in this country, for these reasons : — 

1. The colonial charters, the constitutional law of the colonies, 



18 

required the legislation of the colonies to " be consonant to 
reason, and conformable, as nearly as circumstances would allow, 
to the laws, customs, and rights of the realm of England." 
This made slavery illegal up to the time of the Revolution. 

2. Of all the State constitutions established and existing in 
1787 or 1789, when the constitution of the United States was 
framed and adopted, not one established or authorized slavery. 
It was, therefore, impossible that the slavery then existing could 
have been legal. 

3. Even of the statute law of the States, on the subject of 
slavery, in 1787 and 1789 (admitting such statute law to be, 
as it really was not, constitutional), none described the persons 
to be enslaved with such accuracy as that many, if indeed any, 
individuals could ever have been identified by it as slaves. 

On the 19th of August, 1850, Senator Mason, of Virginia, 
confessed, in the Senate of the United States, that, so far as he 
knew, slavery had never been established by positive law in a 
single State in the Union. And in the United States House of 
Representatives, on the 14th day of March last, Mr. Curry, of 
Alabama, said, — 

" No law, I believe, is found on our statute books authorizing the intro- 
duction of slavery ; and, if positive precept is essential to the valid exis- 
tence of slavery, the tenure by which our slaves are held is illegal and 
uncertain." 

He also, in the same speech, said, — 

" It has been frequently stated in congress, that slavery was not intro- 
duced into a single British colony by authority of law ; and that there is 
not a statute in any slaveholding State legalizing African slavery, or ' con- 
stituting the original basis and foundation of title to slave property.' " 

And he made no denial of the truth of this statement. 

Thus we have abundant evidence that slavery had never had 
any legal existence in the country, up to the adoption of the con- 
stitution of the United States. And, if it had no legal existence 
at the time of the adoption of the United States constitution, 
that constitution necessarily made citizens of all the then people of 
the United States ; for there can be no question that it made citi- 
zens of all, unless of such as were then legally held in bondage. 



19 

But, even if the constitutions and statute-books of every State 
had legalized slavery in the most unequivocal manner, the con- 
stitution of the United States would nevertheless have given 
freedom to all ; because it made " the people of the United 
States," without discrimination, citizens of the United States ; 
and was thenceforth to be " the supreme law of the land," 
" any thing " then existing in, as well as ever afterwards to be 
incorporated into, " the constitution or laws of any State to the 
contrary notwithstanding." 

The adoption of a new constitution is a revolution ; and the 
object of revolutions is to get rid of, and not to perpetuate, old 
abuses and wrongs. All new constitutions, therefore, should be 
construed as favorably as possible for the accomplishment of that 
end. For this reason, in construing the constitution of the 
United States, no notice can be taken of (with the view of per- 
petuating) any abuses or crimes tolerated, or even authorized, 
by the then existing State governments. 

What excuse, then, has any one for saying, that, constitution- 
ally speaking, our country is not a free one ? free for the whole 
human race ? and especially for all born on the soil ? 

IX. 

The palpable truth is, that the four millions of human beings 
now held in bondage in this country are, in the view of the con- 
stitution of the United States, full citizens of the United States, 
entitled, without any qualification, abatement, or discrimination 
whatever, to all the rights, privileges, and protection which that 
constitution guarantees to the white citizens of the United 
States, and that their citizenship has been withheld from them 
only by ignorance, and fraud, and force. 

Such being the truth in regard to this portion of the citizens 
of the United States, it is the constitutional duty of both the 
general and State governments to protect them in their personal 
liberty, and in all the other rights which those governments 
secure to the other citizens of the United States. 

It is as much the constitutional duty of the general govern- 



20 

ment, as of the State governments, to protect the citizens of the 
United States in their personal liberty ; for if it cannot secure 
to them their personal liberty, it can secure to them no other 
of the rights or privileges which it is bound to secure to 
them. 

To enable the general government to secure to the people 
their personal liberty, it is supplied with all necessary powers. 
It is authorized to use the writ of Jiabeaa corpus, which of itself 
is sufficient to set at liberty all persons illegally restrained. It 
is authorized to arm and discipline the people as militia, and thus 
enable them to do something towards defending their own liberty. 
It is authorized " to make all laws which shall be necessary and 
proper for carrying into execution " the powers specifically enu- 
merated. That is to say, it is authorized " to make all laws 
which shall be necessary and proper for carrying " home to each 
individual every right and every privilege which the constitution 
designs to secure to him ; and the United States courts are 
required to take cognizance " of all cases in law and equity 
arisinof under this constitution, the laws of the United States, and 
treaties made, or which shall be made, under their authority.'' 
In other words, they are authorized to take cognizance of all 
cases in which the question to be tried is the right which any 
individual has under the constitution, laws, or treaties of the 
United States. The United States are also bound to guarantee 
to all the citizens of the United States, within the States, the 
benefits of a republican form of government. There is, then, 
obviously no lack of powers delegated to the general government, 
to secure the personal liberty of all its citizens. 

That it is as much the duty of the general, as of the State, 
governments to secure the personal liberty of the people of the 
United States, will be obvious from the following considera- 
tions : — 

The people of the United States live under, and are citizens of, 
two governments, the general and the State governments. These 
two governments are mainly independent of each other ; having, 
for the most part, distinct powers, distinct spheres of action, and 
owing distinct duties to the citizen. The purpose of the general 



21 

government is to secure to the individual the enjoyment of a 
certain enumerated class of rights and privileges ; and the object 
of the State governments is to secure him in the enjoyment of 
certain other rights and privileges. But both governments have 
at least one duty in common, viz., that of securing personal 
liberty to the citizen. This must necessarily be a duty common 
to both governments, because the enjoyment of each of the 
classes of rights and privileges before mentioned, to wit, those 
that are to be secured by the general government, and those 
that are to be. secured by the State governments, necessarily im- 
ply the possession of personal liberty on his part ; since without 
this liberty, none of the other rights or privileges to be secured 
to him by either government, can be enjoyed. It is necessary, 
therefore, that each government should have the right to secure 
his liberty to him, else it cannot secure to him the other rights 
and privileges which it is bound to secure to him. It is as 
necessary that the general government should have power to 
secure to him personal liberty, in order that he may enjoy all 
the other rights and privileges which the general government is 
bound to secure to him, as it is that the State governments 
should have power to secure his personal liberty, in order that he 
may enjoy all the other rights and privileges which it is the 
duty of the State governments to secure to him. It would be 
absurd to say that the general government is bound to secure to 
him certain rights and privileges, which implied the possession of 
personal liberty on his part, as an indispensable pre-requisite to 
his enjoyment of them, and yet that it had no power of its own 
to secure his liberty ; for that would be equivalent to saying that 
the general government could not perform its own duties to the 
citizen, unless the State governments should have first placed 
him in a condition to have those duties performed, — a thing 
which the State governments might neglect or refuse to do. 

The State governments have evidently no more right to 
interfere to prevent the citizen's enjoyment of the rights and 
privileges intended to be secured to him by the general govern- 
ment, than the general government has to interfere to prevent 
his enjoyment of the rights and privileges intended to be secured 



22 

to him by the State governments. For examj)le, the State gov- 
ernments have no more right to prevent his going into the 
post-offices, custom-houses, and court houses, which the general 
government has provided for his benefit, than the general gov- 
ernment has to prevent his travelling on the highways, or going 
into the schools, or court-houses, which the State governments 
have provided for his benefit. 

This proposition seems to us so manifestly true as to need no 
elaboration. And yet, if either of these governments can reduce 
him to slavery, it can deprive him of all the rights and privileges 
which the other government is designed to secure to him. In 
other words, it can deprive that other government of a citizen, 
and thus abolish that other government itself, so far as that citi- 
zen is concerned. Certainly a State government has no more 
power to do this wrong towards the national government, than 
the national government has to do a similar wrong towards a 
State government. In short, neither government has any con- 
stitutional power to deprive the other of a citizen, by making him 
a slave. 

Furthermore, each of these two governments has an equal right 
to defend their common citizens against being enslaved by the 
other. If, for example, the general government were to 
attempt to enslave its citizens within a State, the State govern- 
ment would clearly have the right to defend them against such 
enslavement ; because they are its citizens as well as citizens of 
the United States. And, for the same reason, if a State govern- 
ment attempt to enslave its citizens within the United States, 
the general government clearly has the same right to resist such 
enslavement, that the State government would have in the other 
case ; because they are citizens of the United States, as well as of 
the State. 

This power of each government to resist the enslavement of 
their common citizens by the other, is clearly a power necessary 
for its self-preservation ; a power that must, of necessity, belong 
to every government that has the power of maintaining its own 
existence. It must, therefore, as much belong to the general as 
to the State governments. 



23 

Still further : The principal, if not the sole object of our havin;^ 
two governments for the same citizen, would be entirely defeated, 
if each government had not an equal right to defend him against 
enslavement by the other. What is the grand object of having 
two governments over the same citizen ? It is, that, if either 
government prove oppressive, he may fly for protection to the 
other. This right of flying from the oppression of one govern- 
ment to the protection of the other, makes it more difficult for 
him to be oppressed, than if he had no alternative but sub- 
mission to a single government. This certainly is the only im- 
portant, if not the only possible, advantage of our double system 
of government. Yet if either of these two governments can 
enslave their common citizen, and the other has no right to inter* 
fere for his protection, the principal, if not the only, benefit of our 
having two governments, is lost. 

But our governments, instead of regarding this gieat and pri- 
mary motive for their separate existence, have hitherto ignored 
it, and acted upon the theory, that it is the duty of each to go to 
the assistance of the other, when the latter finds its own strength 
inadequate to the accomplishment of its tyrannical purposes. 
This we see in the case of fugitive slaves. When a citizen of the 
United States, reduced to slavery by a State government, or by 
a private individual with the consent and co-operation of the 
State government, makes his escape beyond the jurisdiction and 
power of the State government, the United States government 
pursues him, recaptures him, and restores him to his tyrants. 
Thus the citizen, instead of finding his security in the double 
system of government under which he lives, finds in it only a 
double power of oppression united against him. What grosser 
violation of all the rational and legitimate purposes of our double 
system of government can be conceived of than this ? 

If these views are correct, it is just as much the constitu- 
tional duty, and just as clearly the constitutional right, of the 
general government to protect the people of the United States 
against enslavement by the State governments, as it is the consti- 
tutional duty and right of the State governments, to protect the 
same people against enslavement by the general government. 



24 

The general government is as much set as a guard and a shield 
against enslavement by the State governments, as the latter are 
as guards and shields against enslavement by the former. 

This view, too, of the object to be accomplished by our double 
system of government, — viz., the greater security of the citizen 
against the oppression of his government, — presents, more clearly 
perhaps than has before been done, the necessity that the gene- 
ral government should determine for itself, indt.pendently of the 
State governments, who are its own citizens, and whoare entitled to 
its protection ; for otherwise the general government could have 
power to protect against a State government only those whom the 
State government should consent to have thus protected against it- 
self. It would be an absurdity to say that the general government 
was established to protect the people against the State govern- 
ments, and yet that it is left to the State governments them- 
selves to s«y whom the general government may thus protect. 
To allow the State governments the power to say whom the gene- 
ral government may, and whom it may not, protect against 
themselves (the State governments), would be depriving the gene- 
ral government of all power to protect any. It would be like 
allowing a man to protect, against a wolf, all lambs except those 
whom the wolf should choose to devour. 

The conclusion necessarily is, that the general government 
must determine for itself, independently of the State govern- 
ments, who are its citizens, and whom it will protect ; and, if the 
general government makes this determination, it can, under the 
constitution of the United States, make no other determination 
than that all the native and naturalized inhabitants of the United 
States are its citizens, and entitled to its protection. 

X. 

There is still another point of great practical importance to 
be considered. It is this : If those now held in bondage in this 
country are, in the view of " the supreme law of the land," citi- 
zens of the United States, entitled to the full privileges of citi 
zenship erpially with all the other citizens of the United States, 



25 

then it is not only the constitutional right and duty of both the 
general and State governments to protect them in the enjoyment 
of all their rights as citizens, but it is also not merely a moral 
duty, hut a strictly legal and constitutional right, of all the other 
citizens of the country to go, in their private capacity as indivi- 
duals, to the rescue of those enslaved. 

It is as much a legal right of one citizen to rescue another from 
the hands of a kidnapper, as to rescue him or her from a rob- 
ber, ravisher, or assassin. And all the force necessary for the 
accomplishment of the object may be lawfully used. 

AVhen the government fails to protect the people against rob- 
bers, kidnappers, ravishers, and murderers, it is not only a legal 
right, but an imperative moral duty, of the people to take their 
mutual defence into their own hands. And the constitution re- 
cognizes this right, when it declares that " the right of the peo- 
ple to keep and bear arms shall not be infringed ; " for " the 
rght of the people to keep and bear arms " implies their right 
to use them when necessary for their protection.* 

We claim it as a legal and constitutional right to travel in all 
parts of our common country, and to perform the common offices 
of humanity towards all whom we may find needing them. And 
if, in our travels, we chance to see a fellow-man in the hands of 
a kidnapper or slaveholder, we claim the right to rescue hi n, at 
any necessary cost to the kidnapper. And, if any part of our 
country be unsafe for single travellers, or small companies of 
travellers, we claim the right to go in companies numerous 
enough to make ourselves safe, and to enable us to rescue all 
whom we may find needing our assistance. 

And it is the legal duty of both the United States and all 

* If, instead of going to the rescue of a fellow-citizen, whom we see set upon by 
a robber, ravisher, kidrapper, or murderer, we connive at the crime, either by 
declaring the act legal, or encouraging the idea that it can be committed with impu- 
nity, we thereby make ourselves accomplices in the crime. By this rule, if the per- 
sons enslaved in this country are, in the view of the United States Constitution, 
citizens of the United States, equally with the other ciuzens of the United States, 
and we nevertheless connive at and encourage their enslavement, cither by declar- 
ing it legal, or by holding out the hope that it can be done with impunity, we are, 
not merely in the view of the moral law, but in the view of the constitution of the 
United States, criminal accomplices in their enslavement. 



26 

State courts — judges and juries — to protect us in the exercise 
of these riiihts. 



XL 

We call particular attention to the duties of juries in this 
matter. We believe in that noblest, and incomparably most 
valuable, of all the judicial opinions ever rendered by the 
Supreme Court of the United States, in which they declared, by 
the mouth of John Jay, the first, and great, and honest Chief- 
Justice, that even in civil suits (as well as criminal) juries have 
a right to judge of the law as well as the fact.* 

We also believe with the United States House of Representa- 
tives, who, in 1804, by a vote of 73 yeas to 32 nays, resolved 
to impeach Samuel Chase, one of the Justices of the Supreme 
Court of the United States, for, as they said, " endeavoring 
[in the trial of John Fries for treason] to wrest from the jury 
their indisputable right to hear argument, and determine upon 
the question of law^ as well as the question of fact, involved in 
the verdict, which they were required to give," and declared 
such conduct " irregular," and " as dangerous to our liberties as 

* This being a case, in which a State was a party, it was tried by a jury in the 
Supreme Court of the United States, From the preliminary remarks of the Chief- 
Justice, it will be seen that the judges were unanimous in the opinion given. He 
said : 

"It is fortunate on the present, as it must be on every occasion, to find the 
opinion of the court unanimous. We entertain no diversity of sentiment ; and we 
have experienced no difficulty in uniting in the charge, which it is my province to 
deliver 

"It may not be amiss here, gentlemen, to remind you of the good old rule, that 
on questions of fact, it is province of the jury, on questions of law, it is the province 
of the court, to decide. But it must be observed that by the same law, which 
recognizes this reasonable distribution of jurisdiction, you have nevertheless a right 
to take upon yourselves to judge of both, and to determine the law, as well as the 
fact, in controversy. On this, and on every other occasion, however, we have no 
doubt you will pay that respect which is due to the opinion of the court ; for, as on 
the one hand, it is presumed that juries are the best judges of facts, it is, on the 
other hand, presumable that the court are the best judges of law. But still both 
objects are lawfully within your power of decision." (State of Georgia, vs. Brails- 
ford ; III. Dallas, Rep. 1.) 

This was in the year 1794. 



27 

it is novel to our laws and usages ; " and that on " the rights of 
juries [to determine the law, as well as the fact] ultimately rest 
the liberty and safety of the American people." 

We believe more than this. We believe that jurors, under 
our constitution, not only have the right to judge what the laws 
are, and whether they are consistent with the constitution, but 
that they have all the ancient and common-law right of jurors to 
judge of the justice of all laws whatsoever, which they are 
called upon to assist in enforcing, and to hold all of them invalid 
which conflict with their own ideas of justice. And that they are 
under no legal or moral obligation to hold valid every iniquitous 
statute, which they may suppose the letter of the constitution can 
possibly be interpreted to cover. It is their duty, as it is the 
duty of congresses and judges, to strive to see how much justice, 
and not how much injustice, the constitution can be made to 
authorize. 

We believe that juries, and not congresses and judges, are 
the palladium of our liberties. We do not at all admit, as is 
now almost universally assumed to be the fact, that the people of 
this nation have ever given their rights and liberties into the 
sole keeping of legislators and judges. We hold that the 
assumption of the supreme court of the United States to decide, 
authoritatively for the people of this country, what their rights 
and liberties ai'e, and what is the true meaning of the constitu- 
tion, is an assumption of absolute power — an entire and flagrant 
usurpation — authorize>l by no word or syllable of the constitu- 
tion ; and that it should not be submitted to for a moment, unless 
we all of us design to be slaves. 

We believe, too, that the practice of selecting jurors by 
judges and marshals, the servile and corrupt instruments of the 
government, who will of course select only those known to be 
favorable to the tyrannical measures of the government, is as 
utterly unconstitutional, as it necessarily must be destructive of 
liberty. We believe that juries should be, in fact, what they 
are in theory, viz., a fair epitome or representation of " the 
country," or people at large ; and that to make them so, they 
must be selected by lot, or otherwise, from the whole body of 



28 

male adults, ^vithout any choice or interference by the govern- 
ment, or any of its officers ; and that when selected, no judge or 
other officer of the government can have any authority to ques- 
tion them as to \Yhether they are in favor of, or opposed to, the 
laws that are to be put in issue. 

In short, we believe it to be the purpose of our systems of 
government to maintain in force only those principles of justice 
which the people generally can understand, and in which they are 
agreed; and not to invest one portion of the people, either 
minority or majority, with unlimited power over the others. 

Evidently the only tribunal known to our constitution, and to 
be relied on for the maintenance of such principles, is the jury. 

We, therefore, hold that all legislative enactments and judicial 
opinions should be held subordinate to that general public con- 
science, which is presumed to be represented in the jury-box, by 
twelve men, taken indiscriminately from the whole people, and 
capable of giving judgments against persons or property only 
when they act with entire unanimity. And we believe it to be 
the primary and cajtital object of our constitutions thus " to get 
twelve honest men into a jury-box," to do justice, according to 
their own notions of it, between man and man, and to see that 
only such measures of government shall be enforced as they shall 
all deem just and proper. 

We believe that, under this system of trial by jury, it will be 
safe for one human being to go to the rescue of another from the 
hands of kidnappers, ravishers, and slaveholders. We believe, 
also, that a government, so powerful and so tyrannical as to 
restrain men from the performance of these primary duties of 
humanity and justice, ought not to be suffered to exist. 

XII. 

Turning now from our constitution, as it is in theory, and 
looking at our government, as it is in practice, what do we 
find ? Do Ave find our national government securing to all its 
citizens the rights which it is constitutionally bound to secure to 
them? No. It does not know, nor even profess to know, /or 



29 

iUelf, who its own citizens are. It does not even profess to have 
any citizens, except such as the separate States may see fit to allow 
it to have. It dares not perform the first political duty towards 
the people of the United States individually, without first humbly 
asking the permission of the State governments. It ventures 
timidly, and hat in hand, within each State, as if fearful of being 
treated as an intruder, and obsequiously inquires if the State 
government will be pleased to allow " the supreme law of the 
land " the privilege of having a few citizens within the State, to 
save it from falling into contempt, and becoming a dead letter ? 
Shamefacedly confessing its own barrenness, it simply offers itself 
as a dry nurse to any political children whom the States may see 
fit to commit partially to its care. Some of the States, confiding 
in its subserviency and desire to please, graciously suffer the 
forlorn and harmless creature to busy itself in various subordinate 
services, such as carrying letters, &c , for all their citizens. 
Others, less gracious towards it, or less disposed to allow their 
citizens the luxury of such a servant, give it strict orders to do 
nothing for these, those, and the others of their people — the 
exceptions amounting, in some States, to one-half of the whole 
population. And the submissive creature follows these instruc- 
tions to the letter, living, as it does, in perpetual fear lest the 
slightest transgression, on its part, should be followed by its 
summary dismissal from the political household. The only dig- 
nity left it is its name. It still calls itself the United States 
Government ; fancies it has citizens of its own, whom it protects ; 
plumes itself, in the eyes of the world, on its greatness and 
strength ; talks contemptuously, and even indignantly, of those 
governments that suffer their subjects to be oppressed; and 
ostentatiously proffers its protection to those of all lands who 
will accept it. Yet all the while the affrighted and imbecile 
thing sees its own citizens snatched aAvay from it, at the rate of 
a hundred thousand per annum, by the State governments, and 
dares neither lift its finger, nor raise its voice, to save one of them 
from the auctioneer's block, the slave-driver's whip, the ravisher's 
lust, the kidnapper's rapacity, or the ruffian's violence. The 
number of its living citizens (to say nothing of the dead) of 



30 

whom it has thus been robbed, amounts at this day to some four 
millions ; and the number doubles in every twenty-five years. 
Nevertheless, its greatest anxiety still is lest its servility and 
acquiescence shall not be so complete as to satisfy these kidnap- 
pers of its citizens. The only symptom of courage it dares ever 
exhibit, as against a State, is when it attempts some rapacious or 
unequal taxation, or commits the unnatural crime of pursuing its 
own flying citizens, not to protect them, but to subject them 
again to the tyranny from which they have once escaped. 

XIII. 

While the government of the nation is thus prostrate and de- 
graded, the people of the nation — at least that portion of them 
who show themselves in political organizations — instead of being 
alive to the authority of " the supreme law of the land," and the 
rights of the people under it, are divided into four wretched, in- 
famous factions, all of whom agree in the political absurdity, that 
the status of a man, relative to " the supreme law of the land," is 
fixed by some subordinate law ; that the rights of a man under the 
constitution of the United States are fixed by the constitutions and 
laws of the separate States. All of them agree, therefore, that the 
States may convert at least four millions citizens of the United 
States into property, with their posterity through all time. All of 
them agree in, and proclaim, the inviolability of property in man, 
within the United States, where alone the United States govern- 
ment has any jurisdiction of the question ; and disagree with each 
other only as to the inviolability of property in man, outside of the 
United States, where the United States have no political jurisdic- 
tion at all. 

XIV. 

We repeat that the United States has no political jurisdiction 
at all, outside of the United States. By this we mean that it has 
no political jurisdiction over people inhabiting the new countries 
west of the United States, which the United States has hitherto 



31 

assumed to govern, under the name of " Territories." And we 
feel bound to make this assertion good. 

Where does the constitution grant congress any power to 
govern any other people than those of the United States ? Even 
the war-making power would not authorize us to hold a conquered 
people in subjection indefinitely, but only so long as they should 
remain enemies, or refuse to do justice. The treaty-making 
power is no power to make treaties adverse to the natural rights 
of mankind. It, therefore, iiScludes no power to buy and sell 
mankind, with the territories on which they live. It no more im- 
phes a power, on our part, to purchase foreign people, and govern 
them as subjects, than it implies a power to sell a part of our own 
people to another nation, to be governed as subjects. 

The only other power which can be claimed as authorizing such 
a government, is granted in the following words : 

" The congress shall have power to dispose of, and make all 
needful rules and regulations respecting, the territory [land] or 
other property, belonging to the United States." 

Here is no grant of general political power over people^ 
either within or without the United States ; but only a power to 
control and dispose of, as property, the land — for " territory" is 
but land — and other property, belonging to the United States. 

To make this idea more evident, let us divide the provision 
into two parts, and read them separately as follows : 

1. " The congress shall have power to dispose of the territory 
[land] or other property, belonging to the United States." 

Here plainly is no grant of political power over people. 

2. " The congress shall have power to make all needful rules 
and regulations respecting the territory [land] or other property 
belonging to the United States." 

Here is plainlv no more grant of political power in connection 
■with the land, than in connection with any " other property " be- 
longing to the United States. 

The power to " make all needful rules and regulations respect- 
ing land or other property belonging to the United States," is no 
grant of general pohtical power over people. 

The power granted is only such a degree of power over land 



32 

and other property belonging to the United States, as may be 
necessary to secure such land and other property to the uses of 
the United States. 

That this power is not one to establish any organized govern- 
ment over people, is proved by the fact that the power is cer- 
tainly as ample in regard to " territory and other property," 
within any of the United States, as to territory and other prop- 
erty, outside of the United States. If, therefore, the power in- 
cluded a power to set up an or^nized government or territory 
outside of the United States, it would equally include a power to 
set up an organized government within each State, to the exclu- 
sion of the State authority, wherever the United States had 
" territory or other property " within a State. But nobody ever 
dreamed that the power authorized any such political monstrosity 
as this. 

There is nothing in the language of the constitution, that im 
plies that the land or other property spoken of, is outside of the 
United States. And as ours is distinctly a government of the 
United States, and not of other countries, the legal presumption 
is that the land and other property — more especially the land — 
belonging to the United States, is to be found within the United 
States, and not in other countries. 

The United States have no rightful ownership of the unoccu- 
pied lands west of the United States. It is against the law of 
nature, and therefore impossible, that they should have any such 
ownership. Land is a part of the natural wealth of the world, 
created for tbe sustenance of mankind, and offered by the Cre- 
ator as a free gift to those, and those only, who take actual pos- 
session of it. And actual possession means either actually living 
upon it, or improving it, by cutting down the trees, breaking up 
the soil, throwing a fence around it, or bestowing other useful 
labor upon it. Nothing short of this actual possession can give 
any one a rightful ownership of wilderness lands, or justify him in 
withholding it from those who wish to occupy it. Governments, 
which are but associations of individuals, can no more acquire any 
rightful ownership in wild lands, without this actual possession, 
than single individuals can do so. Until such lands are wanted 



33 

for actual use, they must remain free and open for anybody and 
everybody, who chooses, to take possession of, and occupy them. 
Governments have no more right to assume the ownership of these 
lands, and demand a price for them, than they have to assume 
the ownership of the atmosphere, or the sunshine, and demand a 
price for them. They have no more right to claim the ownership 
of such lands, than of the birds and quadrupeds that inhabit them ; 
or than they have to claim property in the ocean, and to demand 
a price of all who either sail upon it, or take fish out of it. 

It is no answer to say that our government bought these lands 
of France or Mexico, for neither France nor Mexico had any 
rightful property in them, and could, therefore, convey no right- 
ful title to them. Even in lands purchased of the Indians, the 
United States acquire no rightful property, except only in such 
as the latter actually cultivated, or occupied as habitations. Those 
which they merely roamed over in search of game, they had no 
exclusive property in, and could accordingly convey none. 

The United States, therefore, have no rightful property in wild 
lands, even within the United States. Still less, if possible, have 
they any such property in wild lands outside of the United States. 

There is nothing in the constitution that implies that the United 
States have any property in wild lands, either within or without 
the United States. " The territory [land] or other property be- 
longing to the United States," spoken of in the constitution, 
must be presumed to be such land and other property as the United 
fetates can rightfully own ; and not such as they may simply as- 
sume to own, in violation of the law of nature, and the natural 
rights of mankind. 

There is just as much authority given to congress, by the 
constitution, to assume the ownership of the atmosphere, both 
within and without the United States, and " to dispose of, and 
make all needful rules and regulations respecting " it, as there is 
for their assuming such a power over wild lands, either within or 
without the United States. 

This power granted to congress must be construed consist- 
ently, and only consistently, with the law of nature, if that be 
possible, and with the general purposes of the government. It 



u 

must, therefore, if possible, be construed as applying to occiqned, 
instead of ivild lands, and to those lying within, rather than to 
those lying beyond, the geographical limits of the United States. 
And this is possible. " The power to dispose of, and make all 
needful rules and regulations respecting the territory [land] and 
other property belonging to the United States," and lying and 
being within the United States, is a power constantly needed in 
carrying on the daily operations of the government. It is needed 
in re<mrd to every post-office, court-house, custom-house, or other 
real or personal property, whether absolutely owned, or tempora- 
rily occupied, by the United States. The power applies as well 
to lands and buildings temporarily leased, as to those absolutely 
owned ; because a lease is a partial ownership. 

The constitution specially provides that " over all places pur- 
chased hj the consent of the legislature of the State in which the 
same shall he, for the erection of forts, magazines, arsenals, dock- 
yards, and other needful buildings, congress shall have power to 
exercise exclusive legislation^ But inasmuch as the States 
might not give their consent — and could not even be expected 
to give their consent — to this '-'■ exclusive legislation^^ over all 
the " places " which the United States might purchase (or lease) 
for post-offices, court-hoases, and " other needful buildings," it 
was necessary that congress, instead of a " power to exercise ex- 
clusive legislation^^ over such "jt?/aces," should have power — 
without excluding the general jurisdiction of the States — "to 
make all needful rules and regulations respecting the territory 
[land, " places "J or other property " thus owned or occupied by 
the United States, in order to secure them to the uses, for which 
the United States designed them. AVithout such a power, the 
United States could not establish even a post-office, without first 
getting the consent of the legislature of the State in which it 
was to be established. 

We have, therefore, no need — in order to find " territory " 
[land, " places "] for this power to apply to — to assume that the 
United States, in violation of the law of nature, are the owners 
of wild lands, either within or without the United States. Still 
less have we need to assume that our government has power to 



35 

exercise absolute political authority over peoples outside of the 
United States, in violation of the natural right of all men to go- 
vern themselves. 

Peoples living outside of the United States, are, to us, for- 
eign nations, to all intents and purposes. And it is of uo im- 
portance whether those peoples are many or few ; whether those 
countries are thinly or densely populated ; whether the countries 
are contiijuous to, or distant from the United States. In either 
case they are alike independent of us. Whether they are well, or 
ill governed, or have no government at all, is, politically speaking, 
no concern of ours. 

Peoples settling on the lands west of the United States, are 
therefore, so far as we are concerned, independent nations, over 
whom we have no more political jurisdiction, than over the peo- 
ple of Canada, or England, or France, or Japan. AVhether they 
have any organized governments at all, is no aifair of ours, any 
more than whether the Indian tribes have, or have not, organized 
governments. 

The fact that anj cf these peoples were once citizens of tha 
United States, does not affect the question. We acknowledge 
and maintain the natural right of all men to renounce their 
country. And when our people leave their country, by making 
their permanent homes beyond its limits, they do renounce it. 
And if they ever wish to come into the Union, they must be ad- 
mitted as States, the same as any other nation, that should wish 
to come into the Union, would have to do. 

Por these reasons we have, constitutionally, no political juris- 
diction whatever over those countries west of the United States, 
which we are in the habit of governing under the name of " Ter- 
ritories." * 

* This question of the power of congress to govern countries outside of the 
United States, has been twice before the supreme court of the United States. In 
both cases, although the court declared that " the possession of the power was un- 
questioned," their efforts to show in what part of the constitution the power 
was to be found, seemed to be very unsatisfactory, even to themselves. 

In the first case, the court said : — 

" In the meantime, Florida continues to be a territory of the United States, 
governed by virtue of that clause in the constitution, which empowers congress 



36 



XV. 

If any of our citizens are carried off by force into those 
countries, and there held as slaves, we have the right, by force of 
arms, if need be, to compel their restoration, the same as if they 

' to make all needful rules and regulations respecting the territory, or other pro- 
perty of the United States.' 

" Perhaps the power of governing a territory belonging to the United States, 
which has not, by becoming a State, acquired the means of self-government, may 
result necessarily from the facts, that it is not within the jurisdiction of any par- 
ticular State, and is within the power and jurisdiction of the United States. The 
right to govern, may be the inevitable consequence of the right to acquire, terri- 
tory. Whichever may be the source whence the power is derived, the posuision of 
it is unquestioned." (Am. Ins. Co. vs. Canter; I. Peters, 542.) 

Here three possible sources of the power are suggested ; but which one of the 
three is the true source, the court seem wholly unable to decide. It would seem 
to have been much more in keeping with judicial propriety and integrity, to have 
definitely determined the source of the power, before declaring that " whichever 
may he the source whence the poxoer is derived, the possession of it is unquestioned." 
How the court can say that " the possession of a power is unquestioned," so 
long as they are unable to determine in what part of the constitution the power is 
to be found, is, to say the least of it, very mysterious. Nothing, evidently, short of 
that infallible discernment, which supreme courts assume to possess, could authorize 
them to affirm thus positively the existence of a power, the source of which they 
could not discover. 

We assume that it has already been shown that the first of these suggestions, 
viz., that the power to govern territory, outside of the United States, is included in 
" the power to dispose of, and make all needful rules and regulations respecting the 
territory, or other property belonging to the United States," is wholly unfounded. 

The second suggestion, viz., that the power " may result necessarily from the 
facts that the territory is not within the jurisdiction of any particular State, and 
is within the power and jurisdiction of the United States," assumes the whole 
point in dispute, which is — whether territory and people, outside of the United 
States, are " within the power and jurisdiction of the United States." 

The third suggestion, viz., that " the right to govern, may be the inevitable con- 
sequence of the right to acquire, territory," again assumes the whole point in dis- 
pute, which is — whether the United States have the right to acquire — that is, 
to purchase — territory and peoples outside of the United States. 

It is plainly against the law of nature, and therefore impossible, for govern- 
ments to acquire any rightful ownership of wilderness lands, and withhold them 
from, or demand a price for them of, those persons, who wish to take actual pos- 
session of them, and cultivate them. As it is impossible for any nation to have 
any rightful property in wild lands, it is impossible for one nation to convey any 
such ownership to another. It is, therefore, impossible that the United States can 
" acquire " — that is, purchase — any such ownership. 

It is also against nature, and therefore impossible, that any government should 
own its people, as property, and have the right to dispose of them, as property. 
It is, therefore, impossible that the United States can " acquire," by treaty, any 
ownership of people outside of the United States, or consequently any right to 
govern them. 



37 

had been carried into any other country. And that is all the 
political power which our constitution gives us over slavery in 
those countries. We have no more power to assume general 

In the case of Dred Scott, the same question came again before the court. And 
the court (19 Howard, 443) cited and adopted the opinion previously given, viz., that 
" whichever may be the', source whence the power is derived, the possession of it is 
wiquestioned." But they offered no new argument in its support, except the inti- 
mation (p. 447) that the power to admit new States into the Union might " author- 
ize the acquisition of territory, not fit for admission at the time, but to be admitted 
as soon as its population and situation entitle it to admission." 

But there would be just as much reason in saying that, because A has the right 
to admit B as a partner in business, therefore he has a right to buy him, and hold 
him as a slave, until he is fit to be admitted as a partner. 

The court confess (p. 446) that — 

" There is certainly no power given by the constitution to the federal government 
to establish or maintain colonies, bordering on the United States, or at a distance, 
to be ruled and governed at its own pleasure ; nor to enlarge its own territorial 
limits in any way, except by the admission of new States. , . . No power is given 
to acquire a territory to be held and governed iJermanently in that character." 

But they say (p. 447) that — 

" It [the territory] is acquired to become a State, and not to be held as a colony, 
and governed by congress with absolute authority; and as the propriety of admit- 
ting a new State is committed to the sound discretion of congress, the power to 
acquire territory for that purpose, to be held by the United States until it is in a 
suitable condition to become a State, upon an equal footing with the other States, 
must rest upon the same discretion. It is a question for the political department 
of the government, and not for the judicial ; and whatever the political department 
of the government shall recognize as within the limits of the United States, the 
judicial department is also bound to recognize, and to administer in it the laws of 
the United States," &c. &c. 

This pretence of the court, that although the United States have no power to 
buy territory, and govern it as a colony for ever, they nevertheless have a right to 
buy it and govern it as a colony, until congress, in the exercise of its discretion, 
shall see tit to admit it as a State, is an entire fabrication and fraud. There is 
nothing whatever, in the constitution, that i-equires congress ever to admit a 
territory as a State. And if congress have authority to buy territory, and govern 
it as a colony at all, they have a right to hold it, and govern it as a colony for ever. 

The truth is, that all our constitutional law on this subject — that is to say, all 
the constitutional law that has been practically acted upon by congress — instead 
of being found in our own constitution, is found only where nearly all the rest of 
our constitutional law is found, viz., in the tyrannical practices of other govern- 
ments ; and especially in the tyrannical practices of the English Government. Be- 
cause other governments usurp the ownership of wild lands, and demand a price 
for them, our government does the same. Because other governments have 
colonies, and govern them against their will, our government usurps authority to 
db the same. And because other nations claim to own their colonies as property, 
and assume to sell them as such, our government claims the right to buy any that 
may be in the market. When, in truth, it has no more right to buy the people of 
other nations, than to sell those of our own. 



38 

political jurisdiction there, in order to prevent our people being 
carried there as slaves, than we have to assume similar jurisdic- 
tion over any other parts of the earth, in order to prevent our 
people being carried into them as slaves. 

XVI. 

Whether, therefore, property in man be, or be not, lawful in the 
United States, we have no general political jurisdiction over it 
outside of the United States. And we have no more jurisdiction 
over it in the territories, or countries west of the United States, 
than we have in any other territories or countries in the world, 
outside of the United States. 

XVII. 

If any portion of our people are, in the view of our constitu- 
tion, lawful property within the United States, then, constitution- 
ally speaking, their owners have the right to carry them out of 
the United States into any other part of the world, and there 
hold them, or lose them, according to the laws that prevail there. 
If, on the other hand, no part of our people are, in the view of the 
constitution, lawful property within the United States, then, 
constitutionally speaking, we are bound to prevent any of them 
being carried out of the country as slaves, no matter what part 
of the world they may be carried to. And this is all we have 
to do with slavery outside of the United States. 

XVIII. 

Neither has congress any authority to determine the question 
whether new States shall be admitted into the Union as slave- 
holdinfr or as non-slaveholdin"; States. All new States admitted 
into the Union must come into it subject to the constitution of 
the United States as " the supreme law." If this " supreme 
law " declares one man to be the proporty of another, then, 
constitutionally speaking, he is and must be such property as 



39 

much in the new States as in the old ; and congress has no 
power to prevent it. If, on the other hand, that supreme law 
declares that there is no property in man, then congress has no 
power to set aside this supreme law in favor of any new State, 
any more than in favor of any of the old ones. 

XIX. 

Finally, even if it were admitted that congress has power 
under the constitution to govern countries outside of the United 
States, under the name of " territories," still the law of pro- 
perty, as established by the ccnstitution witJiin the United States^ 
would necessarily be the law of those territories ; for the con- 
stitution would be as much the supreme law of the territories as 
it is of the United States. If, therefore, the constitution makes 
a man property within the United States, it would necessai'ily 
make him property in the territories. If, on the other hand, 
the constitution makes every man free within the United States, 
it would necessarily make every man free in the territories. 

XX. 

Whether, therefore, we have or have not political jurisdiction 
over the " territories," so called, the whole question of slavery, 
so far as our government is concerned, must be settled by deter- 
mining whether the constitution of the United States, " the 
supreme law of the land," does or does not make a man a slave 
within the United States. If it does make him a slave anyivhere 
within the United States, it makes him a slave everyivhere within 
the United States — in oli States and new States — and also in 
the territories, if our government has political jurisdiction over 
the territories. If, on the other hand, the constitution makes 
everybody free within the United States, it makes everybody free 
also in the territories, if our government has jurisdiction there. 



40 



XXI. 

In short, we have one " supreme law " on this point, extending 
over all the States, and over any other countries (if any others 
there be) subject to the jurisdiction of the constitution. And 
when we shall have determined whether that supreme law makes 
a man property or not, either in Massachusetts or Carolina, we 
shall have determined it for all other localities, whether States or 
territories, within which the constitution now is, or ever shall be, 
the *' supreme law." 

XXII. 

There is, therefore, no room or basis under the constitution 
for the four different factions that now exist in this country, in 
regard to slavery, either in the States, or in the territories. 
There is room only for this single question, viz. : Does the Con- 
stitution of the United States, " the supreme law of the land," 
make one man the property of another ? All who take the 
affirmative of this question, and intend to live up to that principle, 
are bound, in consistency, to unite for the maintenance of it in all 
the States, and in all the territories (if the government has 
jurisdiction in the territories). All those who take the negative 
of the same question, and intend to live up to that principle, are 
bound, in consistency, to unite their forces for carrying that prin- 
ciple into effect throughout the United States, and throughout 
the territories (if congress has jurisdiction over the territo- 
ries). And there is no middle ground whatever, on which any 
man can consistently stand, between these two directly antago- 
nistic positions. 

We ask all the people of the United States to take their posi- 
tion distinctly on the one side or the other of this question, at 
t'le ensuing election ; and not to waste their energies or influ- 
ence upon any of the frivolous and groundless issues, which 
divide the four different factions now contending for possession of 
the government. 



41 



XXIII. 



Of all these factions, the Republican is the most thoroughly 
senseless, baseless, aimless, inconsistent, and insincere. It has 
no constitutional principles to stand upon, and it lives up to no 
moral ones. It aims at nothing for freedom, and is sure to 
accomplish it. The other factions have at least the merits of 
frankness and consistency. They are openly on the side of 
slavery, and make no hypocritical grimaces at supporting it. 
The Republicans, on the other hand, are double-faced, double- 
tongued, hypocritical, and inconsistent to the last degree. We 
speak now of their presses and public men. Duplicity and 
deceit seem to be regarded by them as their only available 
capital. This results from the fact that the faction consists 
of two wings, one favorable to liberty, the other to slavery ; 
neither of them alone strong enough for success ; and neither of 
them honest enough to submit to present defeat for their princi- 
ples. How to keep these two wings together until they shall 
have succeeded in clutching the spoils and power of office, is the 
great problem with the managers. The plan adopted is, to make, 
on the one hand; the most desperate efforts to prove that their 
consciences and all their moral sentiments are opposed to slavery, 
and that they will do every thing they constitutionally can, against 
it ; and, on the other, to make equally desperate efforts to prove 
that they have the most sacred reverence for the constitution, and 
that the constitution gives them no power whatever to interfere 
with slavery in the States. So they cry to one wing of their 
party, " Put us in power, and we will do every thing we comti- 
tutionally can for liberty." To the other wing, they cry, " Put 
us in power. You can do it with perfect safety to slavery — for 
constitutionally we can do nothing against it, where it is." 

It is lucky for these Jesuitical demagogues that there happen 
to be, bordering upon the United States, certain wilderness 
regions, over which the United States have hitherto usurped 
jurisdiction. This gives them an opportunity to make a show of 
living up to their professions, by appearing to carry on a terrific 
war against slavery, outside the United States, where it is not ; 



42 

■while, u'ithi'A. the United States^ " where- it z\<t," they have no 
political quarrel with it whatever, but only make a pretence of 
having very violent moral sentiments. 

Outside of the United States, where slavery is not, and where 
the United Statea really have no jurisdiction, the battle is made, 
by these men, to appear to be a real battle of statutes, at least, 
if not of principles. Within the United States, where slavery 
is, and where the United States have jurisdiction, the contest is 
plainly a mere contest of hypocrisy, rhetoric, and fustian, and a 
selfish struggle for the honors and spoils of office. 

In this warfare, in which it is understood that slavery is not to 
be hurt, the weapons employed are mostly absurd, bombastic, and 
fraudulent watchwords, in preference to any constitutional prin- 
ciples, that might be dangerous to the object assailed. Among 
the watchwords are these : " Freedom National, Slavery Sec- 
tional;^' '■'■Free Labor and Free Men;^^ '■'■ Non-extenmn of 
Slavery ; " " Down with the Slave Oligarchy, ^^ &c., &c. All 
these, as used by the Republicans, are either simple absurdities, 
or fair-sounding falsehoods. 

Take, for example, " Freedom National, Slavery Sectional.''^ 
This is both an absurdity and a falsehood, on its face ; for how 
can freedom be national, so long as any section of the nation can 
be given up to slavery ? " Freedom National,^' to have any 
sense, implies a paramount law for freedom pervading the whole 
nation ; and is inconsistent with the idea that slavery can be legal 
in so much even as a section of the nation. But, in the mouths 
of the Republicans, '■'■Freedom National, Slavery Sectional" 
means simply that, for territory outside of the United States, 
there is a paramount national law, that requires, or at least per- 
mits, liberty ; while, within the United States, this national law 
is, or legally may be, overborne by local or sectional laws ; and 
thus the entire territory of the nation be given up to " sectional 
slavery." 

If there bo any territory, loithin the United States, in regard 
to which this assumed national law of freedom is paramount, it 
can be, at most, only the District of Columbia, and a few places 
occupied as forts, arsenals, &c., over which congress have " ex- 



43 

elusive legislation," — places which are but as pin-points on the 
map of the nation. 

And yet this false, absurd, self-contradictorj, and ridiculous 
motto, which really means nothing for freedom, but gives up the 
whole nation to slavery, if the sections (States) so choose, has 
already had a long life, as expressing one of the cardinal princi- 
ples of the Republican faction. 

The motto, '* Free Labor and Free 3Ien,^^ in the mouths of the 
Republicans, is as false and Jesuitical as " Freedom National^ 
and Slavery Sectional.''^ In the mouths of honest men, it would 
imply that they were intent upon giving freedom to labor and 
men, that now are not free. But in the mouths of Republicans, 
it only means that they are looking after the interests of the 
labor and the men, that are already free ; and that, as for the 
the labor and the men, that are not free, they may remain in 
bondage for ever, for aught the Republicans will ever do to help 
them out of it. 

This false, heartless, and infamous watchword — for it deserves 
no milder description — has also had a long life, as expressing a 
cardinal principle of the party. 

But " The Non-Extension of Slavery " is the transcendant 
principle of these pretended advocates of liberty. It is in this 
sign they expect to conquer. What does it mean, or amount to ? 
Does it mean the non-extension of slavery in ■point of time ? No ; 
for slavery may be extended through all time, without obstruction 
from them. Does it mean that slavery shall not be extended to 
neiv victims? No ; for they consent that it may be extended to 
all the natural increase of the existing slaves, until at least the 
850,000 square miles, now occupied by slavery, shall be filled 
with slaves to its utmost capacity. 

What, then, is the extension to which they are so violently 
opposed ? Why, it is only this : If a slave is carried by his 
owner from one place to another, that is an extension of slavery ! 

To continue a man and bis posterity in slavery through all 
time, in one locality, is no extension of slavery, within the Repub- 
lican meaning of the term. But to remove him from that locality 
to another, is an " extension of slavery " too horrible for these 
devotees of liberty to think of. 



44 

But these Republicans, either foolishly or fraudulently, encou- 
rage the idea, that if slavery can but be confined within the space 
it now occupies, it will soon die out ; whereas, in truth, so far as 
mere space is concerned, it probably has enough already for it to 
live and flourish in for two, three, or five hundred years. 

" Doivn with the Slave Oligarchy ^^^ would, to the minds of most 
men, convey the idea of an intention to overthro^y the power of 
the slaveholders, by annihilating their right of property in their 
slaves. But in the creed of the Republicans, '•'■Down tvith the 
Slave Oligarchy " means no such thing. It means only that the 
slaveholders shall not have so much influence in the administration 
of the national government, and especially that they shall not have 
so large a share of the national offices, as they have hitherto had 
the address to secure ! And these wise Republicans imagine 
they can overthrow the slave ohgarchy, and destroy their influence 
in the government, at the same time that they (the Republicans) 
maintain the inviolability of the three or four thousand millions of 
dollars of property in men, on which the slave oligarchy rest, and 
whence all their influence is derived. 

But suppose the slave oligarchy can be overthrown, after this 
plan of the Republicans, what right have the latter, as consistent 
men, acting under the constitution, and pledged to its support, to 
attempt to overthrow the slave oligarchy, so long as they (the Re- 
publicans) concede that the oligarchy are not violating the consti- 
tution, hy holding their fellow-men as property ? According to the 
Republican interpretation of the constitution, the slave oligarchy 
are just as good citizens of the United States, exercising only 
their constitutional rights, as are the Republicans themselves. 
Indeed, there would be nothing inconsistent in the entire slave 
oligarchy being members of the Republican faction, in full com- 
munion. There is nothing in the political creed of the latter, that 
really need stick at all in the throats of the former ; and the Re- 
publicans themselves, or, at least, a large portion of them, would, 
no doubt, be very much delighted by such an accession to their 
numbers. 

" The Suppression of the Slave Trade " appears to be becom- 
ing one of their party watchwords. But, if southern juries will 
neither indict, nor convict, how is the slave trade to be suppressed ? 



45 

and how can the Republicans ask or expect southern juries to 
indict, or convict, for bringing slaves from Africa, so long as they 
(the Republicans) concede the right of property in four millions 
of native Americans ? There is plainly no consistent way what- 
ever, of suppressing the slave trade, except by giving freedom to 
the slaves already in the country, and all that may be brought in, 
and thus putting an end to the slave market. And there is, pro- 
bably, no other possible way of suppressing it. Certainly, there 
is no other possible way of suppressing it, unless by such an 
enormous expenditure as the nation will never be likely to incur. 
''^TJie Suppression of the Slave Trade " may, therefore, fairly be 
set down as another of the fraudulent watchwords of the Repub- 
lican faction. 

Still another specimen of the hypocrisy of this faction, is to be 
found in its name. It has taken to itself the name of Bepiiblican. 
They are great sticklers for the constitution, and many, or most, 
of them " strict constructionists,''' at that. The word, ^^Repah- 
lican,'^ is found but once in the constitution, and we are bound to 
presume that this constitutional party have chosen their name 
with reference to the simification of that word in the constitution. 
But do they propose " to guaranty to every State in this Union 
a republican form of government ? " — a government that shall 
secure to all the citizens of the United States, within the States, 
the protection of the laws ? And do they propose that the United 
States government shall ascertain for itself, independently of the 
State governments, who its own citizens are, within the States, that 
it may fulfil this guaranty to them ? Not at all. So far from it, 
they hold, in the language of the Chicago platform, that — 

•' The maintenance inviolate of the rights of the States, and, especially, 
the right of each State to order and control its own domestic institutions, 
according to iis own judgment exclusively, is essential to that balance of 
power, on which the perfection and endurance of our political faith depend; 
and we denounce the lawless invasion, by armed force, of any State or 
Territory, no matter under what pretext, as among the gravest of crimes." 

This means, if it means any thing, that the " Slave Oligarchy," 
or any other body of men, however small, who may chance to 
get the power of a State into their hands, may reduce anybody 



46 

and everybody, black and white, to slavery, without interference 
from the general government ; and that for private persons to go 
to the rescue of their fellow-men, from these robbers, ravishers, 
and kidnappers, would be " among the gravest of crimes." 

This is giving to slavery more than it ever asked. Even the 
Bred Scott judges themselves set up no such claim for it as this. 
Their opinion admits that whites are citizens of the United States, 
and, because they are such, cannot be enslaved by the States. 
Those judges are, in fact, " nonextensionists,''^ and have a much 
better claim to that title than the Republicans ; for they conceded 
that slavery could not be extended beyond the limits of a single 
race ; whereas the Republicans acknowledge no such, or any 
other, limit to slavery in the States ; or what is the same thing, 
to slavery in the United States. 

AVe believe that no body even of southern men, respectable 
either for numbers, or as representatives of southern sentiment, 
have ever attempted to carry this doctrine of State Bights to 
such lengths, in behalf of slavery, as it is here conceded to them 
by the pretended friends of liberty. In fact, these men have 
been attempting, for years, to rival, at least, if not to outdo, even 
southern men, in their advocacy of this trumpery doctrine of 
" jState Bights.'" And they have at length succeeded in abso- 
lutely outdoing them. And their motive has been, that they 
might gain the reputation of being champions of liberty at the 
north, and at the same time avoid the necessity of performing 
any service for liberty at the south, where alone any real service 
was needed. 

It is of no avail, as a defence for the Republicans, to say, that, 
in another resolution, at Chicago, they declared — 

^' That the maintenance of the principles pronmlgateil in the Declaration 
of Independence, and embodied in the federal constitution, is essential to 
the preservation of our Republican institutions; that the federal constitu- 
tion, the rights of the States, and the union of the States, must and shall 
bo preserved ; and that we re-assert 'these truths to be self-evident, — that 
all men are created ecpial ; that they are endowed by their Creator with 
certain inalienable rights ; that among these are life, liberty, and the pur- 
suit of happiness. That to secure these rights, governments are instituted 
among men, deriving their just powers from the consent of the governed.' " 



47 

It is of no avail that they declare these principles, in one 
breath, Avhen, in the next, they declare the unlimited ri^ht of the 
States to reduce men to bondage. That they should assert such 
opposite principles, only proves what unblushing hypocrites and 
liars they are ; and that they are ready to assert any principles 
whatever, from the extreme of liberty, to the extreme of slavery, 
if they can thereby conciliate or deceive the two opposite wings 
of their faction, and keep them together until their object of 
gaining possession of the government of the country shall be 
attained. 

We have recently been told, on high Republican authority, 
that slavery is a '•'■ five-headed enormity ^ Well, be it so. How 
do the Republicans propose to combat tljis " five-headed enor- 
mity ? " We think we have shown that they propose to combat 
it only by an imposture, that is at least twelve-headed. This 
twelve-headed imposture consists of these twelve separate im- 
postures, to wit : — 

1. The imposture of " Freedom National^ and Slavery Sec- 
tional.'^ That is to say, national freedom outside of the nation, 
and sectional slavery all over the nation itself, if the separate 
sections (States) shall so choose. 

2. The imposture of " Free Labor and Free 3Ien.'^ That is 
to say, seeking the interests alone of the labor and the men, that 
are already free ; and leaving the labor and the men, that are not 
free, to their fate. 

3. The imposture of " Non-Extension of Slavery ^ That is 
to say, extending slavery through all time, and to as many new 
victims as the States respectively may choose ; and " non-extend- 
ing " it only by not removing the slaves from one place to 
another ; but confining them within the narrow precincts of 
850,000 square miles, where it is to be presumed, they will soon 
die out from compression, suflfocation, or some other equally prob- 
able cause. 

4. The imposture of " Down ivith the Slave Oligarchy.'''' That 
is to say, maintaining the slaveholders' right of property in their 
slaves, but depriving them of the political influence which that 
property naturally gives them. 



48 

5. The imposture of "2^e Suppression of the Slave Traded 
That is to say, the suppression of the slave trade by statutes, 
•which slaveholding juries are expected to execute ; the suppres- 
sion of the slave trade, -while the slave markets are kept open ; 
the suppression of the slave trade in native Africans, while 
maintaining the slavery of native Americans. 

6. The imposture of a party, calling itself " JiepubUcan,''^ and 
professing to be a strictly constitutional party ; and yet refusing 
to perform the only duty which the constitution enjoins under the 
specific name of " Republican.''^ 

7. The imposture of declaring that the constitution of the 
United States can be *' the supreme law of the land," and yet 
have no effect in fixi^ the political status of the people. 

8. The imposture of " State Rights.''^ That is to say, the 
imposture of declaring that the States can reduce everybody, or 
anybody, to slavery, and thus deprive them of all rights under 
the national government ; and yet the national government have 
no right to interfere for their protection. 

9. The imposture of assuming that a government, which pur- 
ports to be distinctly the government of the United States, and 
of no other counti-y or people on earth, should have (as the Re- 
publicans claim) so much more political power over countries 
and peoples outside of the United States, than it has over those 
within the United States. 

10. The imposture of assuming that the Republicans or any 
body else can make great conquests for liberty, and at the same 
time do nothing at all to the injury of slavery. 

11. The consummate imposture of supposing that rhetoric, and 
fustian, and bombast, are the only weapons necessary to rid the 
earth of tyrants. 

12. The transcendent imposture of supposing that the Repub- 
lican party itself is, or ever has been, any thing else than an 
imposture. 

^Ye could probably find still other " heads " of this Republican 
imposture, if we had leisure and inclination to search for them. 
But, however many we might find, we should undoubtedly find 
them all filled with the same kind of emptiness as those we have 
enumerated. 



49 



But infidelity to their own convictions of tlie true character of 
the constitution of the United States, in its relation to slavery, is 
the crowning inconsistency, hypocrisy, and crime of large num- 
bers, at least, of the RepubUcan faction. 

There is no reason to doubt that very large numbers of that 
wing of the party, which is sincerely favorable to liberty, includ- 
ing a due proportion of their public men, believe that the consti- 
tution of the United States is not only free itself from the stain 
of slavery, but that it gives liberty to all " the people of the 
United States-/' " any thing in the constitutions or laws of the 
States to the contrary notwithstanding." 

Of the public men, who hold this belief, there is much evidence 
before the pubhc, tending to prove — probably sufficient ration- 
ally to prove — that William H. Seward is one ; that such has 
been his belief for many years ; and that he has intended to 
avow it, and act upon it, so soon as he could do so with safety 
to his political aspirations. Nevertheless, such was the unprinci- 
pled character of the faction on whom he relied for his ago-ran- 
dizement, and'such the unprincipled character of the man himself 
(notwithstanding he has been supposed to combine more ability, 
courage, and integrity, than any other man of the faction) that, 
on the 29th of February last, he was weak and wicked enough, 
in view of his political exigencies, not only to ignore all constitu- 
tional opinions favorable to liberty, but virtually to ignore all the 
moral sentiments he had ever professed on the subject. With a 
deliberate heartlessness, so monstrous as to be disgustino', he 
treated of four millions of human beings — having the same 
natural rights with himself — and having also, in his own esti- 
mation (as we think) equal political rights with himself, under 
the constitution he had sworn to support — we say he heartlessly 
treated of these four millions of men, and their posterity, as so 
much capital — not, perhaps, the best form of capital — but 
whether, or not, the best form of capital, was for the owners to 
judge, and for experience to determine. And if, before this ex- 
periment should be closed, anybody should presume to recc^nize 
them as men, and attempt to convert them from capital into men • 
or recognize them as citizens of the United States, and go to 



50 



their rescue (as any one, on the hypothesis of their being such 
citizens, might legally do) such a person, said Mr. Seward, must 
necessarily, and may justly, be hung. 

Thus this shameless man stood out, and stripped himself before 
the eyes of all people, and labored, in their presence, to cover 
himself all over with this moral and political filth, in order to 
deaden the hated odors of liberty, humanity, and justice, which 
he feared might be still clinging to him, as relics of his former 
professions (and principles, if he ever had any), and thereby fit 
himself, if possible, to become the candidate of his faction. And 
the infamous character of the faction itself is to be inferred from 
the fact, that all this self-defilement, on his part, was unsuccess- 
ful to secure for him their confidence. They feared that at least 
the smell of liberty might still be upon him ; and, therefore, fixed 
their choice upon one, who, if not more clear of all real love 
for freedom, was at least less suspected of any such disquali- 
fication. 

What we have supposed to be true of Mr. Seward, we have 
good reason to believe to be also true of several, perhaps many, 
other Republican members of congress, viz., that, believing the 
slaves in this country to be, in the view of the constitution of the 
United States, full citizens of the United States, equally with them- 
selves, they nevertheless, for the sake of gaining power, publicly 
acknowledge and declare their enslavement to be constitutional, 
and that the general government has no authority to liberate them. 

We think the friends of liberty, in every congressional district, 
should look sharply after their representatives on this point. We 
do not wish to send men to congress, who will belie the constitu- 
tion, they swear to support. We do not even wish to send them 
there to give us essays on the moral nature of slavery. We 
understand that matter already. But, as John Brown would say, 
we want men there, who, believing the constitution gives liberty 
to all, will put the thing through. 

We understand the reasons given, in private, by these men, % 
why they do not declare that slavery is unconstitutional, and that ' ^' 
the general government has power to abolish it, to be. That the 
people are not ready for it! That the liepublicans must first get 



51 



possession of the government ! That is to say, these men must 
persist in their false asseverations, that the general government 
has no power to abolish slavery ; that they, if placed in pos- 
session of that government, never will abolish it ; but will, on the 
contrary, sustain it in the States where it is — they must 
persist in these asseverations, until they get the general gov- 
ernment into their hands ; then, as they wish it to be in- 
ferred, they will avow the fraud by which they obtained their 
power ; will take it for granted that the people are ready to be 
informed what the constitutional law of the country really is ; and 
will proceed to put it into execution, by giving liberty to all ! 

Spirits of Hampden, and Pym, and Sidney, and Elliot ; of 
Otis, and Jefferson, and the Adamses ! Did you, in the full pos- 
session of freedom of speech and the press ; with steam and elec- 
tricity to carry your words to the people ; with boundless wealth, 
the moral sentiments of the world, and the constitutional law of 
your countries, on your side — did you, under such circumstances 
as these, resist tyranny, by asserting it to be legal, and swearing 
that you would support it, where it prevailed ? and declaring that 
you would only oppose its extension into new regions ? Did you 
do all this under the pretence that the people were not ready for 
the truth ? that you must get possession of all the high places of 
power, before you could do or say any thing for freedom ? and 
that, when you should have obtained these places, you would de- 
clare the frauds and perjuries you had committed to gain them ? 
and would then become traitors to tyranny, and faithful to 
freedom ? Was it by such ways as these, that you prepared the 
heaits of the people to stand by you in the great struggles which 
you saw before you ? Or did you not rather, in the midst of 
poverty ; with feeble means of communication and concert ; and 
with dungeons and scaffolds before your eyes, proclaim, with all 
your strength, that tyranny, in its veriest strongholds, was but 
an usurpation ? confident in the truth, that, next to the law of 
nature, the constitutional law of your countries was the strongest 
weapon you could use in behalf of liberty ? and that fraud, and 
falsehood, and perjury were instruments as useless and suicidal 
as they were base ? 



52 



Tell us, also, are the men we now have among us, the Sew- 
ards, and Chases, and Sumners, and Greeleys, and Lincolns, and 
Hales — are these, and such men as these, jour legitimate suc- 
cessors ? If they are, why have not mankind spit upon your 
memories ? i 

XXIV. 

It is abundantly evident, from what has now been said, that the 
constitution of the United States, " the supreme law of the land," 
must necessarily fix the status of every individual, within the 
United States, either as a free person, or a slave ; and that it 
must do this, " any thing in the constitution or laws of any 
State to the contrary notwithstanding." It is also abundantly 
evident that, if any person be made free by that supreme law, he 
is free everywhere under that law ; and that, if any one be made 
a slave by that law, then, constitutionally speaking, he is a slave 
everywhere under that law ; and his owner may carry him, and 
hold him, as property, wherever he pleases, within the United 
States, free of all responsibility to the constitutions or laws of 
the States. 

It is also evident that, if the United States constitution itself 
makes a man slave, the general government, no more than the 
State governments, can give him his freedom. 

The real issue, then, before the country, is, zvhether slavery is 
lawful everywhere within the United States, with no poicer, 
either in the general or State governments, to prohibit it, without 
an amendment to the constitution of the United States? or 
whether it be unlawful everywhere, ivithin the United States, and 
it be the duty of both the general and State governmeiits to pro- 
hibit it ? 

We entreat all, who act politically under the constitution of 
the United States, to keep this issue distinctly in view, and to 
hold all men and all parties strictly to it ; and to give no vote, 
and no word of sympathy or support, to any man, or body of men, 
who either evade it, or hesitate, or equivocate about it. Above 
all, give no vote or support to those public men, who give their rant, 



53 



declamation, and pretended moral sentiments to liberty, and, at 
the same time, give over to slavery the constitution of the country, 
and their oaths to support it. These men are practically the best 
supporters of slavery there now are in the country. They do it 
a service, which no other men can. From the confidence reposed 
in their professions, they have power to deceive honest men as to 
their rights and duties under the constitution, and thus hold 
them back from any direct assault, political or otherwise. And 
this power they are exerting to their utmost for the security of 
slavery. The open friends of slavery have nearly or quite lost all 
power of this kind. They have also deprived themselves of nearly 
all moral sympathy and support. By their indiscreet and head- 
long zeal for slavery, they long ago disgusted everybody but 
themselves. They have now succeeded in disgusting even them- 
selves, especially in the north. Their ranks are broken, their 
minds disaifected, and both their moral and political power in a 
great measure wasted away. Should any one of the factions, 
into which they are divided, succeed in filling the executive de- 
partment of the government, that acquisition will give them no 
real power in the country. Their possession of that department, 
therefore, is not a thing to be dreaded. Better, far better, that 
the presidency should be in the hands of an open, but powerless 
enemy of liberty, than in those of a powerful, but false, perjured, 
and traitorous friend. 

We, therefore, entreat that all, who give their votes at all, at 
the ensuing election, will give them unequivocally for freedom. It 
will not be necessary that they should wait for, or that there 
should be, any national nomination of candidates. It will be suf- 
ficient that, in each State, electoral candidates be named. If any 
of them should be chosen, they can give their votes (as the con- 
stitution contemplated" they would give them), for the persons 
they shall think most worthy. 

But if, as is very likely to be the result, no one of these elec- 
toral candidates should be chosen, the votes given for tliem will 
nevertheless not have been thrown away. The great object is to 
procure the defeat of the Republicans. If defeated on the sixth 
of November, the faction itself will be extinct on the seventh. Those 



dh4 



of its members who intend to support slavery, will then go over 
openly into its ranks ; while those who intend to support liberty, 
will come unmistakably to her side. She will then know her 
friends from her foes. And thenceforth the issue will be dis^ 
tinctly made up, whether this be, or be not, a free country for all ? 
And this one issue will hold its place before the country, until it 
shall be decided in favor of freedom. 



THE 



UNCONSTITUTIONALITY OF SLAVERY 



ENLARGED EDITION. 



By LYSANDER SPOONER 



PUBLISHED AND TOR SALE BY 

BELA MARSH, 
14 BROMFIELD STREET, BOSTON 



PRICE: 

In paper covers, $0.75. 

In cloth, 1.00. 

Postage on the work, in paper, 15 cents ; in clotli, 20 cents. 
A liberal discount will be made to Booksellers and Agents who buy to sell again. 



NOTICES. 

HON. WILLIAM 11. SEWARD writes to Gerrit Smith conoei-ning it as follows: 

" AuBnRN, November 9th, 1865. 
My Dear Sir: I thank you for sending me a copy of Mr. Spooner's treatise. I had 
bought a copy of the first edition. It is a very able work, and I wish that it might be uni- 
versally studied. The writing and publishing of such books is the most effective way of 
working out the great reformation which this nation is required to make by the spirit of 
humanity. 

Very sincerely your friend and obedient servant, 

WILLIAM 11. SEWARD. 
The Honorable Gerrit Smith." 

HON. ALBERT G. BROWN, Senator in Congress from Mississippi, in the Senate, Dec 



loVe 



11 UNCONSTITUTIONALITY OF SLAVERY. 

2d, 1856, (as reported in the Congressional Globe) after describing the book, as "making an 
argument in favor of the Constitutional power of Congress, not only to interfere with, but 
to abolish, slavery in the southern States of the Union," said : 

" The Senator [Wilson] did not say, — what I am willing to say myself — that the book 
is ingeniously written. No mere simpleton could ever have drawn such an argument. If 
his premises were admitted, I should say at once that it would be a herculean task to over- 
turn his argument." 

[Although Mr. Brown thus leaves it to be inferred that he thought there might be 
some error in the premises, he made no attempt to point out any. It would seem to be 
incumbent on him to do so.] 

GERRIT SMITH says : " The more I read that admirable, invincible, and matchless ar- 
gument, which Lysander Spooner has made to show the unconstitutionality of slavery, the 
more I am pleased with it. He yields nothing but what the legal rules of interpretation 
compel him to yield. And why should he make unnecessary concessions in an argument 
undertaken in behalf of all that is sacred and vital in the rights of man ? Were I studious 
of fame or usefulness, I had rather be the author of this manly, brave, and independent ar- 
gument against the constitutionality of slavery, than of any other law argument ever writ- 
ten, either in this age, or in any former age — either on this side, or on the other side, of 
the Atlantic. Why will not all lawyers read it ? Who of them could read it vrithout being 
convinced that slavery is unconstitutional ? " 

WENDELL PHILLIPS, without confessing his conviction of its truth, says : " This 
claim (of the anti-slavery character of the constitution) has received the fullest investigation 
from Mr. Lysander Spooner, who has urged it with all his unrivalled ingenuity, laborious 
research, and close logic." 

ELIZUR WRIGHT calls it " One of the most magnificent constitutional arguments ever 
produced in any country. It needs such a work as Mr. Spooner-s on constitutional law, to 
make the constitution of the least value to us as a shield of rights." 

WILLIA5I LLOYD GARRISON, speaking of Part First, and disagreeing to its conclu- 
sions, on the ground that the words of the constitution do not fully express the intentions 
of its authors, yet says : " His logic may be faultless, as a mere legal effort. AVe admit Mr. 
Spooner's reasoning to be ingenious ; perhaps, as an effort of logic, unanswerable. It im- 
presses us as the production of a mind equally honest and acute. Its ability, and the im- 
portance of the subject on which it treats, will doubtless secure for it a wide circulation and 
a careful perusal." 

JOSHUA LE.WITT says, of Part First : " It is unanswerable. There will never be an 
honest attempt to answer it. Neither priest nor politician, lawyer nor judge, will ever dare 
undertake to sunder that iron-linked chain of argument, which runs straight through this 
book from beginning to end." 

NATHANIEL P. ROGERS, speaking of Part First, and agreeing with some of its posi- 
tions, and disagreeing with others, says : '• It is a splendid essay. If the talent laid out in 
it were laid out in the bar, it would make the author distinguished and rich." " This essay 
should give the author a name at the Boston bar. It will at the bar of posterity." 

SAMUEL E. SEWALL, Esq., says of Part First: — " It merits general attention, not 
merely from the importiince of the subject, but from the masterly manner in which it is 
handled. It everywhere overflows with thought. We regard it as a great arsenal of legal 
■weapons to be used in the great contest between liberty and slavery. 1 hope it will receive 
the widest circulation." 

J. FULTON, Jr., says of Part First : " Now that I have read it, I feel bound to say 



UNCONSTITUTIONALITY OF SLAVERY. HI 

that it is the most clear and luminous production that 1 have ever read on the subject. It 
begins without a line of preface, and ends without a word of apology. It is a solid mass of 
the most brilliant argument, unbroken, as it seems to me, by a single flaw, and treads down 
as dust everything which has preceded it upon that subject. Let every friend of the slave 
read the work without delay. I believe it is destined to give a new phase to our struggle." 

niCIIARD HlLDRETn says of Part First: " No one can deny to the present work 
the merit of great ability and great learning. If anybody wishes to see this argument 
handled in a masterly manner, with great clearness .and plainness, and an array of consti- 
tutional learning, which, in the hands of most lawyers, would have expanded into at least 
three royal octavos, we commend them to Mr. Spooner's modest pamphlet of one hundred 
and fifty pages." 

ELIHU BURRITT says: "It evinces a depth of legal erudition, which would do 
honor to the first jurist of the age." 

The Tnie American, (Cortland County, N. Y.,) says: "It is an imperishable and 
triumphant work. A law argument that would add to the fame of the most famed jurist, 
living or dead." 

The Bangor Gaze«esays: " It is indeed a masterly argument. No one, unprejudiced, 
who has supposed that that instrument (the constitution) contained guarantees of slavery, 
or who has had doubts upon the point, can rise from the perusal without feeling relieved 
from the supposition that our great national charter is one of slavery and not of free- 
dom. And no lawyer can read it without admiring, besides its other great excellences, 
the clearness of its style, and its logical precision." 

The Hampshire Herald, (Northampton) says: " It is worthy the most gifted intellect 
in the country." 

WILLIAM L. CHAPLIN says: "This effort of Mr. Spooner is a remarkable one in 
many respects. It is unrivalled in the simplicity, clearness, and force of style with which it 
is executed. The argument is original, steel-ribbed and triumphant. It hears down all 
opposition. Pettifogging, black-letter dullness, and pedantry, special pleading and dema- 
gogism, all retire before it. If every lawyer in the country could have it put into his hands , 
and be induced to study it, as he does his brief, it would alone overthrow slavery. There is 
moral force enough in it for that purpose." 

The Liberty Press, (Utica,) says: "The author labors to show, and does show, 
that slavery in this country is unconstitutional, and unsustained by law, either state or 
federal." 

The Granite Freemam&yi: " We wish every voter in the Union could have the op- 
portunity to read this magnificent argument. We should hear no more, after that, of the 
' compromises of the Constitution ' as an argument to close the lips and palsy the hands of 
those who abhor slavery, and labor for its removal." 

The Charter Oak says: " Of its rare merit as a controversial argument, it is super- 
fluous to speak. It may, in fact, be regarded as unanswerable, and we are persuaded that 
its general circulation would give a new aspect to the Anti-Slavery cause, by exploding the 
popular, but mistaken notion, that slavery is somehow entrenched behind the Consti- 
tution." 

The Liberty Gazette (Burlington, Vt.,) says: "This work cannot be too highly 
praised, or too extensively circulated. Its reasoning is conclusive, and no one can read it 
without being convinced that the constitution, instead of being the friend and protector of 
slavery, is a purely Anti-Slavery document." 

The Indiana Freeman sa,y a: "Every Abolitionist should have this admirable work, 
and keep it in constant circulation among his neighbors." 



IV UNCONSTITUTIONALITY OF SLAVERY. 



SYNOPSIS 



Chap. I. What is Law? (p. 5.) Nothing ineonsiptent with justice can be law. 
Falrehood of the definition, that " Law is a rule of ciyil conduct, prescribed by the supreme 
power of a State." 

[Where the genuine trial by jury prevails, this principle can be carried out in practice.] 

Chap. II. Written Constitutions, (p. 15.) Admits, for the sake of the argument, that 
constitutions and statutes, inconsi.stent with justice, may be made law ; and in.=ists only 
that our constitutions shall be interpreted by the established rules, by which all other legal 
instruments are interpreted ; one of which rules is, that all words, that are susceptible of 
two meanings, one favorable to justice, and the other to injustice, shall be taken in the 
sense favorable to justice. 

Chap. III. The Colonial Cliarters. (p. 21.) That these charters were the constitu- 
tional law of the Colonies up to the time of the Revolution ; that the provisions in them to 
the effect that their legislation should be "consonant to reason, and not repugnant or 
contrary, but so far as conveniently may be, agreeable to the laws, statutes, customs, and 
rights of this our kingdom of England," made it impossible that slavery could have any 
legal existe'nce in the Colonies up to the time of the Revolution; and that the decision of 
the King's Bench, in Somersett'S case, was as much applicable to the Colonies as to Eng- 
land. Note corrects Bancroft's statement, that England ever legalized the slave trade. 

Chap. IV. Colonial Statutes, (p. 32.) Shows that the Colonial legislation, on the 
subject of slavery, failed to identify, with legal accuracy, the persons to be made slaves ; 
and, therefore, even if such legislation had been constitutional, would have failed to legal- 
ize slavery. That, consequently, there was no legal slavery in the country, up to the time 
of the Revolution. 

Chap. V. The Declaration of Independence, (p. 36.) By this the nation declares it 
to be "a self-evident truth," that all men are created free and equal. All "self-evident 
truths " are necessarily a part of the law of the land, unless expressly denied. The na- 
tion, as a nation, has never denied this self-evident truth, which it once asserted. This 
truth is, therefore, a part of the law of the land, and makes slavery illegal. 

Chap. VI. The State Constitutions of 11^9. (p. 39.) None of the State constitutions 
in existence in 1789, established or authorized slavery. All of them, on their face, are free 
'•onstitutions. Shows that the words "./Vcf,'" and "yVe^wiin,'" used in these constitutions, 
were u.sed in the English or political sense, to designate native or naturalized persons, as 
distinguiifhed from aliens, or persons of foreign birth not naturalized; and that they were, 
in no case, used to designate a free person, as distinguished from a slave. Tliat the use of 
the words in this sense, in the State constitutions of 1789, as they had been previously used 
ill the colonial ch.arters, and colonial legislation, furnish an authoritative precedent, by 
which to fix the meaning of the words, " /Vfe persons,'' in the Constitution of the United 
States, in the clause relative to representation and direct taxation. 

Chap. VII. The Articles of Confederation, (p. 51), contain no recognition of slavery ; 
but use the word '■^ free " in the Engli.«h or political sense, to signify the native and natural- 
ized citizens, as distinguished from aliens; and thus furni.'shes a precedent, authorized by 
the whole nation, for giving the same meaning to the word ^\free " in the constitution. 

Chap. VIII. The Constitution of the United States, (p. 54.) This chapter, tn Me 
frst place, takes it for granted to have beeu shown that slavery had no legal existence up 
to the time of the adoption of the United States Constitution. It then says that that cou- 



UNCONSTITUTIONALITY OF SLAVEUY. V 

stitution certainly did not create or establisli slavery as a new institution ; that the most 
that can be claimed, is that it recognized the legality of slavery so far as it then legally ex- 
isted under the State governments; but that, as slavery then had no legal existence, under 
the State governments, any intended recognition of it, by the Constitution of the United 
States, must necessarily have failed of effect. That consequently all " the people of the 
United States " were made " citizens of the United States " by the constitution ; and there- 
fore could never afterwards be made slaves by the State governments. 

Secondly, (p 56.) Shows, from its provisions, that the Constitution of the United States 
does not recognize slavery as a legal institution, but presumes all men to be free; denies 
the right of property in man ; and, of it-elf, makes it impossible for slavery to have a legal 
existence in any of the United States. Sliow.-*, (p. 67,) that the clause relative to persons 
held to service or labor, has no reference to .'slaves; that (p. 73) the term, ''free persons," in 
the clause relative to representation, is used in the political sense, to designate native and 
naturalized persons, as distinguished from persons of foreign birth, not naturalized; that 
(p. 81) the clause relative to " migration and importation of persons," does not imply that 
the persons imported are slaves; that it makes no discrimination as to the persons, 
whether African or European, to be imported; that it as much authorizes the importation 
of Englishmen, or Frenchmen, as slaves, as it does Africans; that it would, therefore, be a 
piratical constitution if the importation of persons implied that the persons to be imported 
were slaves; that (p. 87) the clause relative to the protection of " the States against domes- 
tic violence," does not imply the existence or legality of slavery, or protection against slave 
insurrections; that (p. 90) " We, the people of the United States," means all the people of 
the United States ; the constitution, therefore, made citizens of all the then people of the 
United States; that (p. 95) the "power to regulate commerce," is a power to regulate com- 
merce among all the people of the United States, ami implies that all are free to carry on 
commerce; that (p. 96) the power to establish post ofifices, is a power to carry letters for aU 
the people, and implies that all the people are free to send letters; that (p. 9G) the power to 
secure to authors and inventors their exclusive right to their writings and discoveries, impUes 
that all capable of writings and discoveries, are capable of being tlie owners thereof ; that 
(p. 96) the power to rai.se armies, implies that Congress have power to accept volunteers, or 
hire soldiers by contract with themselves, and that all are free to make such contracts; that 
(p. 97) the power to arm and discipline the militia, implies that all are liable to be armed 
and disciplined ; that the right to keep and bear arms, is a right of the whole people ; that 
(p. 98) the prohibition upon any State law impairing the obligation of contracts, implies 
that all men have the right to enter into all contracts naturally obligatory ; that (p. 99) all 
natural born citizens are eligible to the Presidency, to the Senate, and to the House of Itep- 
resentatives; that (p. 102) the trial by jury implies that all per.'^ons are free; that (p. 102) 
the Habeas Corpus denies the right of property in man ; that (p. 105) the guaranty to every 
State of a republican form of government, is a guaranty against slavery. 

Chap. IX. The Intentions of ike Convention, (p. lU) Personal intentions of the 
framers of no legal consequence to fix the legal meaning of the constitution. The instru- 
ment must be interpreted as being the instrument of the whole people. 

Chap. X. The Practice of the Government, (p. 123.) The practice of the govern- 
ment, under the constitution, has not altered the meaning of the constitution itself. The 
instrument means the same now, that it did before it was ratified, when it was first offered 
to the people for their adoption or rejection. 

Chap. XI. The Understanding of the People, (p. 124.) No legal proof, and not even 
a matter of history, that the people, before they adopted the constitution, understood that 
it was to support slavery. Could never have been adopted, had they so understood it. 

Chap. XII. The State Constitutions c/" 1.S45. (p. 126.) Do not authorize slavery : 
do not designate, nor authorize the State legislatures to designate, the persons to be made 
slaves. Have provisions repugnant to slavery. The treaties for the purchase of Louisi- 
1* 



VI UNCONSTITUTIOXALITV Of SLAVERT. 

ana and Florida, imply that all the " inhabitants " were free, possessing the rights of lib- 
erty, property, and religion, and were to become citizens of the United States. 

Chap. Xin. The Children of Slaves are bom Free. (p. 129.) Shows that, even if 
the persons held as slaves at the adoption of the Constitution, were to continue to be held 
as slaves, their children, born in the country, were nevertheless all to be free by virtue of 
natural birth in the country. 



PART SECOND. 



Cdap. XIV. 77if D'-Jinition af Law. (p. 1.37.) The definition of law, given in chap- 
ter first, insisted on and defended. Additional authorities cited in note. 

Chap. XV. Ought Judges to resign their seats? (p. 147.) No; but to continue to 
hold them, and do justice. 

Chap. XVI. The Supreme power of a State, (p. 153.) Absurd results from the 
theory that the legislature represents " the supreme power of the State." 

Chap. XVII. Rules of Interpretation, (p. 155.) Examines the established rules of 
legal interpretation, and shows that they required the word " free," or the term " free 
PERSONS," in the clause relative to representation, to be interpreted to mean, native and 
naturalized persons, as distinguished from immigrants not naturalized; and not to mean 
persons enjoying their personal liberty, as distinguished from slaves. 

Chap. XVin. Servants counted as Units, (p. 237.) The provision that " those 
bound to service for a term of years," should be included among the " free persons," im- 
plies that there were to be no slaves. 

Chap. XIX. Slave Representation, (p. 238.) Absurdity and injustice of it, a con- 
clusive reason against any interpretation authorizing it. 

Chap. XX. Why aliens are counted as three-fifths, (p. 242.) Not being full citizens, 
ought not to be counted as such. Inequality produced among the States by doing so. 

Chap. XXI. Whi/ the words '■'■Free Persons" were nsed. The word" free," had 
always been the technical word, both in this country and in England, for describing native 
and naturalized persons, as distinguished from aliens. The indefiniteness of the word 
" CITIZEN " made it an improper word to be used, where precision of meaning was required. 

Chap. XXII. ^'All other Persons.'^ (p. 257.) These words used to avoid the use of 
the unfriendly and inappropriate word " aliens," and also to include " Indians not 
taxed." 

Cuap. XXin. Additional Arguments 0)1 the word Tree. (p. 265.) Showing that this 
word must be taken in the political sense, before meutioned, and not as distinguished from 
slaves. 

Chap. XXIV. Power of the Central Government over Slaverij. (p. 270.) Origin and 
necessity of the power to abolish slavery in the States. 

Appendix A, Fuoitive Slaves, (p. 279.) Extended legal and historical argument on 
this subject. 

Appendix B. Suggestions to Abolitionists, (p. 290.) Abolitioni.^t.-; can abolish slavery 
legally, only by taking the ground that the United States Constitution authorizes the 
general government to abolish it. 



AN ESSAY 



TRIAL BY JURY. 



Bf LYSANDER SPOOXER. 



PUBLISHED AND FOE SALE BV 



BELA IMARSH, 



14 BROM FIELD STREET, BOSTON 



P K IC E : 

In pamphlet, $1.00. 

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Postage on pamphlet, 13 cts.; on cloth, IS cts. ; on law sheep, IS cts. 

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ESSAY OX TUE TRIAL BY JURY. 



CONTEXTS 



Chap. I. The Right of Jlries to Judge of the Justice of 

Laws, ------- 5 

Section 1, ...... 5 

Section 2, -- - - - - -11 

Chap II. The Trial by Jury, as defined by Magna Carta, 20 

Stction 1. The History of Magna Carta, - - - 20 

Section 2. The Language of Magna Carta, - - 25 

Chap. III. Additional Proofs of the Rights and Duties of 

Jurors, .-..-. 51 

Section 1. Weakness of the Regal Authority, - - 51 
Section 2. The Ancient Common Law Juries were mere 

Courts of Conscience, - . . . 53 

Section 3. The Oaths of Jurors, - - - - 85 

Section 4. The Right of Jurors to fix the Sentence, - 91 

Section 5. The Oaths of Judges, - - - - 98 

Section 6. Tiie Coronation Oath, - - - 102 

Chap. IV. The Rights and Duties of Juries in Civil Suits, 110 

Chap. V. Objections answered, - - - - - 123 

Chap. VI. Juries of the present day illegal, - - 142 

Chap. VII. Illegal Judges, - - - - - 157 

Chap. Vlll. The Free Administration of Justice, - 172 

Chap. IX. The Criminal Intent, - - - - 178 

Chap. X. INIoral Considerations for Jurors, - - 192 

Chap. XI. Authority of Magn.\ Carta, - - - 192 

Chap. XII. Limitations imposed upon the Majority bv the 

Trial by Jury, ----- 2O6 

Appendix — Taxation, -.-.-. 222 



AN ESSAY ON THE TRIAL BY JURY. IX 

The theory of this book is that the ancient and common-law juries, such 
as we are now constitutionally entitled to, were mere courts of conscience, 
who tried, and whose oaths required them to try, all causes, both civil and 
criminal, according to their own notions of justice, regardless of all legisla- 
tive enactments, and all judicial opinions, which did not correspond with 
their own sense of right. 

And inasmuch as it was necessary that the jurors should be drawn by lot, 
or otherwise taken at random, from the whole body of male adults, without 
any choice, dictation, or interference, by the government, it was reasonably 
presumed that substantially all opinions, prevailing among the people, 
would be represented in the jury ; that, in other words, a jury would be, in 
fact, a fair epitome of " the country," or whole community, which it was de- 
signed to represent. 

And since the twelve, thus selected, could render no judgment, unless by 
an unanimous assent, it follows that no laws were intended to be enforced, 
except such as substantially the whole people were agreed in, as being just. 

From this statement, it will be seen that our modern idea, that the majority 
have the right arbitrarily to govern the minority, and to establish any thing 
they may please as law, without regard to justice, is wholly incompatible 
with the principles of the Trial by Jury. 



NOTICES. 

The following is from the pen of Richard Hildreth, Esq., the historian. 

"ESSAY ON THE TRIAL BY JURY.'' 

Messrs. Editors :— This remarkable book, bj-Lysander Spooner, will richly repay peru- 
sal on the part of aU who feel the least interest in the theory of government, that is to say, 
all the thinking men of the United States, and indeed of all the world over. The charming 
ease and lucidity of Mr. Spooner's style, — in which, among all the writers of the English 
language, he has very few eompetitor.s, — the close coherence of his ideas, and the sharp 
dexterity of his logic, give to his book, what we seldom find now-a-days, the interest of a 
well-compacted drama, with all the Aristotelian unities complete, and a regular beginning, 
middle, and end. Having begun to read it, we found it impos.sible to lay it down till we 
got to the end of it, though obliged to sit up long past midnight, and though we were 
already informed of the general tenor of the argument, from having seen the greater part 
of the proof-sheets. The book indeed h■^s this further resemblance to a poem of the first 
class, that it will not only bear re-perusal, but gain by it — which we take to be the great 
distinction between the true poem, whether in verse or prose, and the mere novel or ro- 
mance. There are, however, some citations and notes, which may be skipped on the second 



X ESSAY ON THE TRIAL BY JURY. 

periual, and indeed on the first, by those inveterately given to that practice, as not essen- 
tial to the argument, only corroborative of it. But if any reader intends to take issue — as 
the lawyers say — with Mr. Spooner, he had better read the whole at least twice over. 

The trial by jury has enjoyed and enjoys a most lofty traditional reputation as " the 
palladium of English liberty.'" Looking at jury trial as it now actually exists, the judges 
dictating not only the conclusion in law, that is, the decision to which the jury is bound to 
come upon any such state of facts as they may consider to be proved, but having also the 
exclusive decision as to what evidence shall be admitted to prove these facts, and the in- 
structing of the jury what weight they ought to allow to this or that piece of evidence, and 
what conclusions they ought to draw from it; with all these assumptions of authoritj- on 
the part of the judges, the jury seems to have become very much what the late Mr. Justice 
Story was accustomed, in private conversation, to describe it as being — a mere stalking- 
horse, from behind which the judge may shoot quietly and safely, deciding everything, at 
the same time that he escapes the responsibilit3', and in some cases, the odium, of doing so. 

Such being the practical character of our modern juries, mere cloaks and shields of 
judicial dictation, it has come, among thinking men, to be a great puzzle how they ever got 
their immense reputation as a " palladium of liberty;" and some writers have not scrupled 
to denounce the whole idea as a mere humbug. 

Mr. Spooner, however, has shown very conclusively, and by a skilful array of authori- 
ties that cannot be got over, that in its original institution, and during the whole time in 
which it got this reputation as the " palladium of liberty," the jury was a totally different 
thing from what it has become in these later times under the plastic hands of the judges, 
the juries having been originally sole judges of both law and fivct, indeed possessing sub- 
stantially a veto on the execution of any such laws as thej- did not consider conformable 
to justice and the public good. 

All readers may not agree with Jlr. Spooner's somewhat enthusiastic admiration of this 
jury veto power ; but that it did exist, and that it was this which made the jury the " pal- 
ladium of English liberty," he has proved beyond the shadow of a doubt; and in so doing 
has shed a great deal of new light upon the gradual formation of what is known as the 
British constitution, the source from which so large a part of our American constitutions 
are derived. 

Nothing is more certain than that the great, indeed the sole value of the trial by jury 
is political. As a mere contrivance for deciding matters of fact — according to the common 
representation made of it by modern lawyers — it is clumsy, inconvenient, and Uable to a 
variety of objections. In those countries on the continent of Europe, in which it has been 
introduced of late years, for the trial of criminal cases, it has greatly disappointed the 
expectations formed by those who had been accustomed to read of it in books as the " pal- 
ladium of liberty," and is generally esteemed a total failure. 

We are not entirely prepared to go with Mr. Spooner, for the complete re-establishment 
of the jury veto on the ancient model. But that it is absolutely essential to the liberties 
of the people to preserve to juries the right of deciding law as well as fact, in all criminal 
cases, we do not entertain the slightest doubt. And considering the recent and alarming 
strides, a.s well of legislative as judicial usurpation, — especially the fact recently announ- 
ced from the bench of the Federal Court of the United States for this circuit, that all the 
judges of the Supreme Court of the United States scout tlie idea of any right in a jury to 
judge of the law in any case whatsoever, — we think Mr. Spooner has done excellent service 
in calling attention, a.s he has so ably, to the ancient conservative jury veto. 

Mr. Spooner is a thorough-going Democrat, — as zealous for the rights of the people, 
and as fierce against judicial usurpation, as Jefferson himself. Indeed some of the lunges 
which he makes at their honors ou the bench — as in the note on page 164 — have a hearty 
frankness about them highly refreshing to one who has been sickened and disgusted — as 
what hater of falsehood aud cant has not been? — by the systematic routine flattery and 
servility of the bar towards the jud^'es. But more consistent, more [comprehensive, and 
truer to liberty than Jefferson ever was, Mr. Spooner is equally hostile to tlie usurpations 
and tyranny of a domineering msjority under the forms of legislation. And, indeed, in our 



ESSAY ON THE TRIAL BY JURY. XI 

American States, judicial usurpation is seldom very boldly ventured upon, except in the 
service of a tyrant majority, eager to trample under foot the constitutional and natural 
rights of the minority. The Conservatives, therefore, no less than the Demosrata, owe a 
debt of gratitude to Mr. Spooner. It is truth and justice in whose cause he is enlisted, not 
that of party. 

R. II. 

HON. STEPHEN ROYCE, formerly Chief Justice, and afterwards Governor, of A'er- 

mont, says : 

East Berkshire, Verjiom, 

September 21, 18.57. 

G. W. Sbarle, Esq.: Sir, — You will please accept my thanks for the favor of Mr. 

Spooner's book upon " The Trial by Jury." I have derived much pleasure from a hasty 

perusal of it, and hope the author will persevere and produce the other works, of which he 

has given indications in this. Although I do not look to see his theories extensively carried 

out in practice, yet I think his labors must have effect for good. Investigations so decidedly 

able and searching, can scarcely fail to excite reflection and serious enquiry, — as well with 

honest legislators and statesmen, as among enlightened jurists. And the result may be, at 

least, a step taken towards restoring to suitors .some of those common-law rights, of which, 

in the lapse of centuries, they have been gradually deprived. 

With high respect, your ob't serv't, 

STEPHEN ROYCE. 

GEORGE W. SEARLE, Esq., says: The general proposition assumed and aimed to be 
sustained is, that "for more than .'is hundred years — that is, since Magna Carta in 1215 
— there has been no clearer principle of English or American constitutional law, than that, 
in criminal cases, it is not only the right and duty of juries to judge what are the facts, 
•what is the law, and what was the moral intent of the accused ; but that it is also their 
right, and their primary and paramount duty, to judge of the justice of the law, and to hold 
all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in 
violating, or resisting the execution of, such laws." It will be seen that this is a bold pro- 
position, and at first glance it may appear untenable ; but it is certainly a position not to be 
entirely appreciated by a glance. It must be confessed that it elevates the tribunal of the 
Jury to the highest pinnacle of power, making them the judge of the judges, and giving 
them authority to sit in judgment upon the legislature itself. This position the author 
seeks to maintain in a very learned and ingenious argument of 224 pages, in the first instance 
from the general nature of the jury as the palladium of liberty, and a bulwark against the 
tyranny of authority — by the history, spirit, and language of Magna Carta — and by a variety 
of reasoning in detail. This head is followed by a general refutation of objections 

It is not our purpose to enter at length upon any discussion, either in support or refu- 
tation of the doctrioes laid down by the author; for the former task we feel our incompe- 
tency, and for the discharge of the latter, that much more time would be requisite than we 
have at our command, if indeed any time would justify the undertaking. Whatever doubts 
there may be as to the author's opinions upon many subjects, we may say of his writings 
what Charles James Fox once said of a speech he was about to reply to in the House of 
Commons, to one who noticed his serious perturbation, " it is not so easy a matter to answer 
such an argument as that." * * » That the positions assumed are novel and heretical, 
judged in the light of prevailing adjudications, is quite true, but that for that reason they 
are any the less worthy of regard, is quite wide of the truth. To the thinking man we 
recommend it as food upon which he may feed and grow strong; and to the professional 
man, in an age of progres.sive jurisprudence, when the science of law, too long bound with 
an iron grasp to antiquated decisions and principles having nothing but their antiquity 
and their folly for their authority, is beginning to take its march by the side of modern 
science, we recommend its candid and impartial examination, assuring him that in it he will 
find the bold expression of manly truths, without fear or favor. 



Xll ESSAY OX THE TUIAL BY JURY. 

WENDELL PniLLIPS, Esq., says of it: "Though I dissent from Mr. Spooner's 
main conclusion, I must confess this effort is marked with all his pre eminent ingenuity 
and ability. He has laid all history under c<" itribution for light as to the origin and func- 
tions of juries ; and I am debtor to his diligence and research for much that was new to me. 
The original province of a jury has never before been fully investigated in any work acces- 
sible and intelligible to common readers. I am not aware that there has been any able and 
extended argument about it since Erskine's. 

The fullness, therefore, of historical illustration, which Mr. Spooner has given to those 
points, even, on which many of the profession would agree with him, makes the volume a 
valuable contribution to legal literature. 

Though he has not converted me to his views, yet I always read him with pleasure, and 
admire him for an opponent on one account — he states his questions so fairly, and faces 
the difficulties like a man. 

I quite agree that juries have the right, in both civil and criminal cases, to judge what 
the law is, i. e. what the Legislature have constitutionally enacted — but I cannot allow 
them the right to set aside statutes because they think them unjust." 

ROBERT E. APTIIORP, Esq., says of it: If it cannot be answered, it must make 
a deep impression on the conscience, and thus on the jurisprudence, of the age in 
which we live. That it can be answered I greatly doubt ; or rather I should say, I have no 
doubt about it. One thing is certain, — no tyro will venture to flesh his sword upon such 
a structure of logic and fact ; and should any worthy antagonist present himself in the 
lists, our generation and all future ones would owe Mr. Spooner a debt of gratitude for 
having forced attention, in high places, to a subject than which, I may safely say, none 
more intimately and vitally concerns this Republic. 

REV. EDWARD BEECHER, D. D., says of it : Thus stated, it is plain that no point of 
history can exceed in dignity and importance that which Mr. Spooner has undertaken to 
discuss. 

The mode of his discussion is worthy of the gravity of the point at issue. It does not 
at all consist of rhetorical declamation, but is a sober, earnest, learned, and powerful ai^u- 
ment, based on copious citations fi'om numerous and weighty legal and historical authorities, 
ancient and modern. 

ELIZUR WRIGHT says of it : " To me it seems not only very remarkable a.s a book, 
but as a discoverj'; one which may be more useful to the world than new gold regions." 

HON. SAMUEL E. SEWALL says of it : " This is a work of deep research and power- 
ful argument. It ought to be in the hands not merely of every judge and every lawyer, 
but of every man who values liberty, and wishes to examine its sacred foundations." 

HON. JOSHUA R. GIDDINGS says of it: "It should be placed iu the library of every 
lawyer, and of every reader of general literature." 



